[Congressional Record (Bound Edition), Volume 155 (2009), Part 13]
[Senate]
[Pages 17961-18008]
[From the U.S. Government Publishing Office, www.gpo.gov]




        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2010

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of S. 1390, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (S. 1390) to authorize appropriations for fiscal 
     year 2010 for military activities of the Department of 
     Defense, for military construction, and for defense 
     activities of the Department of Energy, to prescribe military 
     personnel strengths for such fiscal year, and for other 
     purposes.

  Pending:

       Reid (for Leahy) amendment No. 1511, to provide Federal 
     assistance to States, local jurisdictions, and Indian tribes 
     to prosecute hate crimes.
       Reid (for Kennedy) amendment No. 1539 (to amendment No. 
     1511), to require comprehensive study and support for 
     criminal investigations and prosecutions by State and local 
     law enforcement officials.

  The PRESIDING OFFICER. The Senator from Delaware is recognized.
  Mr. KAUFMAN. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                       In Praise of Jeffrey Knox

  Mr. KAUFMAN. Mr. President, last week, I spoke about the founding 
generation of Americans and the legacy they passed down to us of 
sacrifice and service above self. These are the values that constitute 
the foundation of our civil service, and it is these values that 
motivate our Federal employees. It is what drives each of them, each 
day, to perform the small miracles that make the American Government 
work. Without their dedicated efforts and important contributions, we 
could not have a government that is responsive and representative. That 
is the birthright the Founders left for us--that the people should be 
represented not only by officials they have elected but by civil 
servants entrusted to carry out the people's business.
  In thinking about these ideas and about the Founders, I cannot help 
but think of those who risk their safety working as Federal law 
enforcement officers and prosecutors. One such Federal prosecutor is 
Jeffrey Knox. As an assistant U.S. Attorney from the Eastern District 
of New York's Violent Crimes and Terrorism Division, Jeffrey is on the 
front line in both the war on crime and the war on terror.
  At age 36, Jeffrey has already achieved distinction for prosecuting a 
number of important cases. He has become one of the Nation's preeminent 
prosecutors trying suspects in terrorism cases. In his role as head of 
the Violent Crimes and Terrorism Division, Jeffrey has been a leader in 
investigations of terror groups such as al-Qaida, Hamas, and LTTE. His 
colleagues have praised him for his roll-up-your- sleeves, get-your-
hands-dirty philosophy, and he has traveled to dangerous hot spots in 
pursuit of evidence.
  One of Jeffrey's landmark cases was the successful investigation, 
arrest, and indictment of four suspects who were charged with plotting 
to attack the fuel tanks at JFK Airport. The attack they had planned 
was intended to be as devastating as September 11. Jeffrey worked 
closely with the military, the intelligence community, foreign 
governments, and local law enforcement agencies in an 18-month-long 
investigation.
  In another high-profile case, he successfully obtained the 
convictions of a group of conspirators who were attempting to deliver 
missiles and other weapons to the LTTE in Sri Lanka. He also worked to 
put behind bars an Iraqi translator who stole classified defense 
information and passed it to insurgents targeting our troops. Jeffrey 
has prosecuted violent street gangs in New York City as well.
  What inspires me most about Jeffrey is that he did not start as a 
criminal prosecutor. Before September 11, he was a corporate lawyer on 
Wall Street. After that terrible day, Jeffrey was motivated to leave 
Wall Street and work in the Federal Government as an assistant U.S. 
attorney. When asked why he gave up such a lucrative position on Wall 
Street for a tough job prosecuting terrorists and gang members, Jeffrey 
said:

       If you can put a dangerous individual behind bars so that 
     individual will never have the ability to jeopardize another 
     person's life again, then it's all worth it.

  Jeffrey Knox is just one of many Federal prosecutors and law 
enforcement officials who risk their lives every day to keep Americans 
safe. The sacrifices they make all too often go unrecognized. I urge my 
colleagues to join me in honoring their service and sacrifices, and I 
join all Americans in thanking them for the important contribution they 
make to our Nation.
  The PRESIDING OFFICER. The Senator from New York is recognized.


                           Amendment No. 1511

  Mrs. GILLIBRAND. Mr. President, I rise today in support of the 
Matthew Shepard Hate Crimes Prevention Act of 2009. I am proud to join 
Senator Kennedy as an original cosponsor of this important legislation. 
This legislation condemns the poisonous message that some human beings 
deserve to be victimized solely based on their sexual orientation, 
gender, gender identity, or disability.
  Hate crimes are serious and well-documented problems that remain 
inadequately prosecuted and recognized. Current Federal hate crimes law 
affords important protections against crimes motivated by a person's 
race, color, religion, or national origin. It fails to protect a 
significant number of Americans when victims are targeted based on 
their actual or perceived sexual orientation, gender, gender identity, 
or disability. This legislation will expand protection to these groups, 
ensuring that all Americans are afforded equal protection under the 
law.
  In addition to recognizing and prosecuting all forms of hate crimes, 
we must also provide local law enforcement agencies with the requisite 
tools to successfully combat these heinous acts. This legislation 
provides significant support to local law enforcement agencies across 
the Nation, including critical technical, forensic, prosecutorial, and 
other assistance to State, local, and tribal law enforcement officials 
for hate crime investigations and prosecutions.
  It is essential that we send the message that these crimes will not 
be condoned. When we fail to prosecute violence driven by hatred and 
protect Americans' human rights, we risk escalation of such activities.
  New York State has recently had numerous examples of hate crimes that 
would be prosecuted under this legislation. Within 3 weeks, three 
communities in Queens and Long Island--within an hour's drive--have 
experienced violent hate crimes targeted at gay, lesbian, and 
transgender victims. In each instance, the victims were the targets of 
violent attacks while the assailants communicated homophobic slurs.
  During one of the incidents in Queens, a transgender female was 
brutally attacked while walking to her home. As she walked down her 
residential block, she was repeatedly taunted by two men who only ended 
their taunting with homophobic slurs so they could focus on beating her 
with a metal belt buckle. Her anguished cries

[[Page 17962]]

for help were met with laughter as the two men removed all of her 
clothing and left her naked and bleeding in the middle of the street.
  Unfortunately, this case was not investigated as a hate crime because 
current law does not provide protection for gender identity. This 
victim, like many others around the Nation, was a target of violence 
because of who she was. This must end.
  In 2007, there were 500 such incidents in New York State alone. This 
is a reflection of a larger national trend where we see that the number 
of documented hate crimes is on the rise. In 1991, the Federal Bureau 
of Investigation began collecting hate crimes statistics, and since 
then the number of reported crimes motivated by sexual orientation has 
more than tripled.
  This legislation, which has received bipartisan support before, is 
supported by more than 300 civil rights, law enforcement, and civil and 
religious organizations in addition to the vast majority of the 
American people. It is important we ensure that all Americans and all 
States are covered under this comprehensive hate crimes legislation.
  There is some concern this bill would impact the first amendment. It 
does not. The Matthew Shepard Hate Crimes Prevention Act of 2009 covers 
only violent acts or attempted violent acts that result in death or 
bodily injury. It does not prohibit or punish speech, expression, or 
association in any way. Thoughts and speech are explicitly protected in 
this bill. This bill is not infringing upon freedom of speech. It is 
about safeguarding Americans' human rights and equal justice.
  As Dr. Martin Luther King once said, ``injustice anywhere is the 
threat to justice everywhere.''
  I strongly believe freedom and equality are inalienable American 
rights and should not be ascribed based on gender or race, religion or 
sexual orientation or gender identity. This legislation is an important 
step toward expanding human dignity and respect for all Americans.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, although I have been an active participant 
in the Judiciary Committee's Sotomayor confirmation hearings, I have 
followed with great interest the floor debate on continuing the 
production of the F-22A Raptor.
  Unfortunately, over the years I have heard a number of incorrect 
assertions made about this aircraft, and I have tried to correct them. 
But after listening to this week's debate and reading misleading 
articles, especially in the Washington Post, about the F-22's 
performance and capabilities, I believe the Raptor's opponents have hit 
bottom--and have begun to dig.
  Therefore, I would like to set the record straight about the F-22 and 
its extraordinary war-winning capabilities.
  Fact No. 1: The F-22 is, and will continue to be, the preeminent 
fighter/bomber for the next 40 years.
  The F-22 is the stealthiest aircraft flying today. Unlike the F-117 
Nighthawk and the B-2 bomber the F-22s can be deployed on stealth 
flight operations not just at night, but 24 hours a day. This one-of-a-
kind capability provides our combatant commanders with unprecedented 
flexibility to engage ground and air targets at a time of their 
choosing--thus denying any respite to the enemy.
  The Raptor is equipped with supercruise engines that are unique 
because they do not need to go to after-burner to achieve supersonic 
flight. This provides the F-22 with a strategic advantage by enabling 
supersonic speeds to be maintained for a far greater length of time. By 
comparison, all other fighters require their engines to go to after-
burner to achieve supersonic speeds, thus consuming a tremendous amount 
of fuel and greatly limiting their range.
  The F-22 is the deadliest fighter flying today. During a recent 
military exercise in Alaska, the Raptor dispatched 144 adversaries 
versus the loss of only one aircraft.
  Further advantage resides in the F-22's radar and avionics. When 
entering hostile airspace, the F-22's sensor-fused avionics can detect 
and engage enemy aircraft and surface threats far before an enemy can 
hope to engage the F-22. At the same time, its advanced sensors enable 
the F-22 to be a forward-surveillance platform capable of gathering 
crucial intelligence on the enemy.
  Often overlooked, the F-22 is a very capable bomber. It can carry two 
GPS-guided, 1,000-pound joint direct attack munition bombs or eight 
small-diameter bombers.
  Fact No. 2: The F-22 is not a Cold War dinosaur. It is designed to 
meet and eliminate the threats of today and tomorrow.
  As the longest-serving member of the Senate Intelligence Committee, I 
know full well the greatest air threat of today and tomorrow is, and 
will continue to be, the advanced integrated air defense system.
  Such a system is composed of two parts. The first component is 
advanced surface-to-air missile systems such as the Russian-made S-300, 
which has a range of over 100 miles. The second are highly maneuverable 
and sophisticated fighters like the Su-30, which have been sold to 
China and India. Coupled together, these anti-access systems make 
penetrating hostile airspace extremely difficult, if not deadly, for 
those aircraft lacking the F-22's advanced stealth technology and 
sustained supersonic speeds made possible by its supercruise engine. It 
is also important to remember the mainstays of our aerial fleet, the F-
15, F-16 and F/A-18, are not stealth aircraft and are not equipped with 
supercruise engines.
  Unfortunately, integrated air defense systems are relatively 
inexpensive, placing them within the purchasing potential of nations 
such as Iran with its seeming insistence on developing nuclear weapons.
  The advanced integrated air defense system is exactly the threat the 
F-22 was designed to neutralize. In addition, the F-22 will almost 
simultaneously be able to turn its attention to other ground targets 
that threaten the national security of the U.S. and our allies.
  In a related argument, some argue the United States should devote 
more of its military resources toward bolstering its counterinsurgency 
capabilities.
  This is a fair point. Unwisely, the United States did permit its 
counterinsurgency capabilities to atrophy after the Vietnam war. As 
events in Iraq and Afghanistan have shown, we continue to pay dearly 
for that error. However, as we reconstitute our ability to successful 
prosecute counterinsurgency campaigns, we cannot make a similar mistake 
and undermine one of the fundamental foundations of our military 
strength: hegemony in the air.
  Even Defense Secretary Robert Gates said this January, ``Our military 
must be prepared for a full spectrum of operations, including the type 
of combat we're facing in Iraq and Afghanistan as well as large scale 
threats that we face from places like North Korea and Iran.'' I could 
not agree more, and the aircraft that will enable our Nation to 
decisively defeat our adversaries in the air is the F-22.
  Mr. President, others point out the F-22 has not been deployed in 
support of our operations in Iraq and Afghanistan. This is true. 
However, there were recent plans to deploy the F-22 to the Persian 
Gulf. But according to the July 9, 2008, edition of the widely 
respected Defense News, the Pentagon overruled those plans, citing 
concerns about ``strategic dislocation.'' This means the F-22 is hardly 
a dinosaur. It is a weapon that can change the balance of power in a 
region and deter our adversaries.
  Fact No. 3: 187 F-22s is an insufficient number to meet the minimum 
requirements of our national military strategy.
  Our Nation's military requirements are decided upon in detailed 
studies of the threats our Nation and its allies

[[Page 17963]]

confront. These studies also recommend force structures to deter and, 
if necessary, defeat threats to our national security. Accordingly, the 
Department of Defense and the Air Force have conducted a number of 
studies to determine how many F-22s are required to meet our national 
military strategy.
  I am unaware of any comprehensive study that has concluded F-22 
production should cease at 187 aircraft. Specifically, unclassified 
excerpts from the Air Force's sustaining air dominance study stated 
``180 F-22s was not enough,'' and the Department of Defense TACAIR 
optimization study concluded the procurement of additional Raptors 
``was the best option.'' On April 16, these conclusions were reinforced 
by comments made by GEN Norton A. Schwartz, the Chief of Staff of the 
Air Force, after the F-22 procurement termination was announced. 
General Schwartz stated, ``243 [Raptors] is the military requirement.''
  Opponents of the Raptor will most likely dispute this, pointing to 
comments made by General Cartwright during his July 9 testimony before 
the Senate Armed Services Committee. During his testimony the general 
stated the decision to terminate production of the F-22 is supported by 
a ``study in the Joint staff that we just completed and partnered with 
the Air Force.'' However, my staff has inquired about this study and 
was informed a recently completed comprehensive, analytic study does 
not exist.
  No doubt, the Joint Staff has prepared some justification for F-22 
termination.Yet I believe it is only natural to question the 
objectivity of any assessment which justifies previously reached 
decisions.
  Unfortunately, yesterday, my suspicions about this so-called analysis 
were proven correct when Geoffrey Morrell, the Pentagon's press 
secretary, stated General Cartwright was referring to ``not so much a 
study [as a] work product.''
  Therefore, I believe the Congress should place great significance on 
the June 9 letter by GEN John Corley, the commander of air combat 
command, who stated ``at Air Combat Command we have a need for 381 F-
22s to deliver a tailored package of air superiority to our Combatant 
Commanders and provide a potent, globally arrayed, asymmetric deterrent 
against potential adversaries. In my opinion, a fleet of 187 F-22s puts 
execution of our current national military strategy at high risk in the 
near to mid-term. To my knowledge, there are no studies that 
demonstrate 187 F-22s are adequate to support our national military 
strategy.''
  I believe these are important words from the four-star general who is 
responsible for the Air Force command which is the primary provider of 
combat airpower to America's war-fighting commands.
  Fact No. 4: The Washington Post article that alleged technical and 
maintenance difficulties of the F-22 was misleading and inaccurate.
  In fact, the Air Force has written two rebuttals to this article. 
After viewing the first rebuttal, I found it striking the Air Force 
stated six of the points made in the article were false, four were 
misleading, and two were not true.
  Specifically, the primary assertion made by the Post was the F-22 
cost far more per hour to fly than the aircraft it is replacing, the F-
15. However, this is misleading. Only when you include all of the one-
time costs that are associated with a new military aircraft is this 
true. A far more accurate measurement is to compare variable flying 
hours. The F-22 costs $19,750 per hour to fly versus $17,465 for the F-
15. The F-15 costs less to fly, but the 1960s-designed F-15 does not 
have nearly the capabilities of the F-22.
  The article asserts the F-22 has only a 55-percent availability rate 
for ``guarding U.S. airspace.'' This is misleading. Overall, the F-22 
boasts a 70-percent availability rate, and that has been increasing 
every year over the past 4 years.
  Finally, the article states the F-22 requires significant 
maintenance. This is true. But the Post article misses the critical 
point: the F-22 is a stealth aircraft. Making an aircraft disappear 
from radar is not accomplished through magic. It is achieved through 
precise preparation and exacting attention to detail.
  I believe we can all agree it is far better to expend man hours to 
prepare an airplane that will win wars than to buy replacement aircraft 
after they have been shot down, not to mention the moral cost of not 
exposing our pilots to unnecessary dangers.
  Fact No. 5: The F-22's detractors argue erroneously that the Raptor's 
role can be filled by the F-35, also known as the Joint Strike Fighter. 
But the Raptor and the Joint Strike Fighter were designed to complement 
each other, not be substituted for each other. The F-22 is the NASCAR 
racer of this air-dominance team. Fast and unseen, the Raptor will 
punch a hole in an enemy's defenses, quickly dispatching any challenger 
in the air and striking at the most important ground targets. The Joint 
Strike Fighter is the rugged SUV of the team. Impressive, but not as 
maneuverable or capable of sustained supersonic speeds, the F-35 will 
exploit the hole opened by the F-22 and attack additional targets and 
directly support our ground forces. This is not to say the F-35 is not 
a highly capable stealthy aircraft. But the F-35's role is to 
supplement the F-22, not substitute for it. Only by utilizing the 
strengths of both aircraft do we ensure air dominance for the next 40 
years.
  Fact No. 6: Our allies recognize the critical capabilities of the F-
22 and are eager to purchase the aircraft.
  This is one of the most compelling reasons for purchasing additional 
numbers of F-22s. The Japanese and Australian governments have 
consistently approached our government about purchasing the Raptor for 
themselves. If the F-22 is such a boondoggle, why would these nations 
be willing to spend billions of dollars to purchase them. Australia 
already plans to purchase up to 100 F-35s. Why does it need the Raptor? 
Perhaps it is because these nations realize a number of the threats to 
their security can only be defeated using the F-22 Raptor.
  In conclusion, we have an opportunity to ensure this and future 
generations continue to benefit from one of the foundations of our 
national security: the ability to defeat any air threat and strike any 
target anywhere in the world. The world is changing; threats are 
growing. Today we have an opportunity to ensure those air threats are 
met.
  To be honest with you, our young men and women who fly deserve the 
very best equipment we can give to them, not equipment that is getting 
old, outmoded, and cannot do the job.
  I hope my colleagues will join me in voting against the Levin-McCain 
amendment.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. JOHANNS. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. JOHANNS. I ask unanimous consent to speak for 10 minutes as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Johanns pertaining to the submission of S. Res. 
212 are located in today's Record under ``Submitted Resolutions'').
  Mr. JOHANNS. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BROWN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Shaheen). Without objection, it is so 
ordered.
  Mr. BROWN. Madam President, I ask unanimous consent to speak as in 
morning business for up to 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Health Care Reform

  Mr. BROWN. Madam President, yesterday was a wonderful day for this 
institution but, more importantly, it was

[[Page 17964]]

a spectacular day for hundreds of millions of Americans who are 
concerned about our health care system. The Health, Education, Labor, 
and Pensions Committee completed the markup of its health care reform 
legislation. The first rule of thumb was that if you are satisfied with 
the health insurance you have today, you can stay in it. The whole 
point of health reform is to reduce health care costs and expand access 
to quality care for all Americans.
  Earlier this week, the HELP Committee had a historic opportunity to 
cut costs for millions of Americans by creating a commonsense pathway 
for generic versions of what are called biologic drugs. Biologic drugs 
are live cells, unlike the more old-fashioned but still very, very 
common chemical drugs that are made and that we have known of for many 
years. Biologic drugs treat cancer, Parkinson's, diabetes, arthritis, 
rheumatoid arthritis, Alzheimer's, and other serious conditions.
  Earlier this week, the HELP Committee could have limited what are 
called around here exclusivity rights--better known as monopoly 
rights--could have limited monopoly rights for biologics to 7 years 
instead of enabling that monopoly for 12 years. Earlier this week in 
the committee, consumers lost and the biotech industry won. How can we 
improve access to health care if people cannot afford their biologic 
drugs? How can we reduce costs if we don't inject competition into the 
marketplace, if we grant monopolies and block any competitors from 
coming in and competing for these drugs? During the debate, we heard a 
lot of numbers on how many years the big drug companies should have 
unchecked monopolies. We heard it should be 13 years or one of them was 
13\1/2\ years or 12 years or 10 years. I wanted 5 years or maybe 7 
years at the most.
  Let me include some other numbers as we debate the minutia of health 
care reform. Let me include some other numbers that are too often yet 
sometimes deliberately overlooked.
  Some 190,000 women will be diagnosed with breast cancer this year. 
Herceptin is the brand-name biologic that treats breast cancer. It 
costs $48,000 a year. That is $1,000 a week. If you are lucky enough to 
have insurance, you might get part of this paid for, but you probably 
have a 20 percent copay, so then it is $200 a week. That is if you are 
lucky. If you are not so lucky, you simply can't afford it.
  More than 1.3 million Americans live with rheumatoid arthritis. 
Remicade is the brand-name biologic that treats rheumatoid arthritis. 
It costs $20,000 a year. If you are lucky enough to have insurance, you 
are probably paying a 20 percent copay. That would be $4,000 a year 
just for the biologic drug for your treatment--not counting lost work, 
not counting paying doctors' bills, not counting trips to the hospital, 
not counting tests. That is $4,000 a year for that drug, if you are 
lucky enough to have insurance.
  This year, more than 148,000 people will be diagnosed with colon 
cancer. Avastin is the brand-name biologic that treats colon cancer and 
costs $100,000 a year, which is $2,000 a week. So if you are lucky 
enough to have insurance, you pay a copay of $400 per week, which is an 
awful lot of money.
  To put these numbers in perspective, the average annual household 
income in Ohio is $46,000. So when you look at these drugs--one I 
mentioned, Herceptin, is $1,000 a week; Remicade for rheumatoid 
arthritis is $20,000 a year; Avastin for colon cancer is $100,000 a 
year, $2,000 a week--again, if you are lucky enough to have insurance, 
your 20-percent copay for that $100,000 a year is $20,000, and an 
average income in Ohio is $46,000.
  Brand-name biologics, these relatively new kinds of treatments, will 
make up 50 percent of the pharmaceutical market by the year 2020. The 
prices for most of these drugs are increasing far faster than 
inflation--far faster even than medical inflation--and we know what 
that is all about--about 9.3 percent each year. The price for biologic 
drugs for multiple sclerosis increased by 23 percent last year.
  I remember about a dozen years ago, if you had a family member who 
was suffering from cancer, we were outraged and just so surprised and 
shocked and upset that Taxol, the chemical cancer drug, in those days 
cost $4,000 a year. We thought that was outrageous, exorbitant, 
unaffordable, out of reach, $4,000 a year. But this cancer drug now is 
$40,000 a year; Herceptin is more than $40,000 a year. So where is the 
outrage now?
  I understand drug companies need to protect their investment and 
their profit. However, many of these biologics that have been developed 
came initially from research that all of us as taxpayers funded. We 
appropriate every year about $31 billion for the National Institutes of 
Health, something I fought for when I was in the House. I was part of 
the group that doubled funding for NIH, in those days, from about $12 
billion to $25 billion a year. It was a wonderful investment. As we 
invest in these drugs, invest in this research that is the foundation 
for these drugs, it is a good thing. Then these companies, at their 
expense and at their risk, develop them into wonderful medicines and 
medication. But after building their foundation on taxpayer research, 
they are charging this much for these biologics, and even if you are 
lucky enough to have insurance, you simply can't afford them. So I want 
these drug companies to protect their investment and their profit, but 
we can't give companies open-ended protection from competition.
  The committee voted earlier this week to grant 12 years of monopoly. 
Orphan drugs get a 7-year monopoly protection. Standard drugs, which 
have been wonderful for so many people in this country--very important, 
very complicated drugs; pretty much as complicated as these biologic 
drugs--get 5 years of monopoly protection. So orphan drugs get 7 years, 
standard drugs get 5 years. Other products on the market that have 
patents, as these do, and have those protections don't get additional 
monopoly protections. But this committee this week--I thought 
outrageously so--gave 12 years of monopoly protection. That is 
unacceptable to many of us. President Obama says it should be 7 years. 
The AARP says it should be 5 to 7 years.
  The Federal Trade Commission reported that additional years of 
monopoly protection actually crimps innovation, that giving these extra 
years of monopoly protection actually hinders innovation. I would argue 
that this monopoly protection harms innovation because it discourages 
biotechs from searching for new revenues.
  Let me give an example. If a drug company produces a biologic that 
can matter a lot in an important treatment and they got a 12-year 
monopoly protection and consider that the biologic might be 
administered by injection in a doctor's office; that those same 
scientists who have created that biologic that you inject, after 5 or 6 
years, come up with a new way to do it, to take it by aerosol. 
Everybody I know would rather do that than stick a needle in their arm 
every day or so, however often they need the treatment. But do you know 
what. That new innovation is not going to come until the 12 years are 
up.
  That is why the committee erred so extravagantly when it gave 12 
years of monopoly protection to the drug industry. It hinders 
innovation. That means patients are going to keep getting the shot 
every day for 12 years. They will have to wait until the 12 years are 
up before they introduce the new aerosol way of administering this 
drug. If there had been for 4, 5, 6, or 7 years, they would have 
brought that new drug on the market much quicker.
  The only argument that the biotechs' allies on the HELP Committee 
used was simple: This hurts innovation.
  It only hurts their profits. It clearly doesn't help innovation. The 
only study put forward, other than a study from PhRMA, the big drug 
company lobbyist or study from biologic companies--and many are the 
same companies--other than their studies, the only one out there was a 
Federal Trade Commission study on this 12 years. What good are these 
biologics if nobody can afford them?
  The Hatch-Waxman Act, which introduced generic versions of chemical 
drugs, has proved we can still lead the

[[Page 17965]]

world in biologic innovation with competition from generics. Twenty-
five years ago, the drug industry said the same line they are using 
now--that there is no way we will innovate, and this will put them out 
of business.
  Patients in Akron, Bowling Green, Chillicothe, and Dayton understood 
that this law from 25 years ago worked to keep prices down. Those same 
people around my State, people in Xenia, Springfield, Mansfield, and 
Portsmouth need that same access to generic versions of these 
biologics.
  The vote this week was not in the best interests of patients 
suffering from multiple sclerosis, arthritis, cancer, Alzheimer's or 
heart disease. It was not in the best interest of taxpayers. Who is 
paying the bill? Either people are paying out of their pockets--and 
most cannot afford it--and insurance companies are going to raise rates 
to employers and to patients or the taxpayers are going to pay for it. 
The beneficiaries are not patients. It hurts innovation. The 
beneficiaries are the drug executives and the biologic company 
executives. It is not in the best interest of taxpayers. An article in 
Roll Call today or yesterday pretty much said that biologic industry--
they spent $500,000 in ads in the last few days. The health care 
industry spends a million dollars a day lobbying, and they were rather 
successful in what they did.
  I am proud to have been part of the historic health debate that 
passed a bill as good as we passed. I am also proud to have been part 
of this debate that continues to talk and educate the people on 
biologics.
  Clearly, the fight for affordable generic drugs is not over. I will 
fight and do whatever is best for taxpayers and patients, and that 
means a continued effort to make this law work, as Hatch-Waxman worked 
for so many Americans.
  I will fight for the breast cancer patient who has to spend $1,000 a 
week for biologic Herceptin or the colon cancer patient who spends 
$2,000 a week or the person with rheumatoid arthritis who spends $2,000 
a month for medicine they desperately need.
  I applaud groups such as AARP that put families and consumers first. 
I look forward to working with Members in the House and Senate and the 
administration who are fighting for what is right.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mrs. Hagan). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. MERKLEY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MERKLEY. Madam President, I rise because of a document our 
forefathers signed 233 years ago, the Declaration of Independence. 
Specifically, the Declaration stated:

       We hold these Truths to be self-evident, that all Men are 
     created equal, that they are endowed by their Creator with 
     certain unalienable Rights, that among these are Life, 
     Liberty, and the pursuit of Happiness.

  That simple phrase created the bedrock foundation for a nation 
founded under equality under the law, freedom from persecution, and the 
pursuit of happiness by our citizens--government by and for the people 
under the concept of quality and freedom from persecution.
  It is an honor to rise to advocate for that philosophy.
  I rise in strong support of the Leahy amendment that would amend the 
Department of Defense bill to include the Matthew Shepard Hate Crimes 
Prevention Act of 2009. First, I thank and acknowledge Senator Kennedy 
for his strong decade-long commitment to this legislation. I extend my 
appreciation to Senator Leahy for leading this effort in Senator 
Kennedy's absence.
  It has been more than 10 years since Matthew Shepard was brutally 
murdered simply because of his sexual orientation. It is long past time 
that we take action to strengthen the Federal Government's ability to 
investigate and prosecute hate crimes. There is no room in our society 
for these acts of prejudice. Hate crimes fragment and isolate our 
communities, and they tear at our collective spirit. They seek to 
terrorize our society through brutal violence against targeted 
individuals. The Matthew Shepard Hate Crimes Prevention Act is a 
critical step to protect those who are victimized simply for who they 
are.
  Hate crimes legislation is not a new concept. In fact, the United 
States of America has had hate crime laws in place for 40 years. The 
Hate Crimes Act of 1969 was passed shortly after the assassination of 
Martin Luther King. That assassination motivated Congress to action.
  That law says it is illegal to ``willfully injure, intimidate or 
interfere with any person, or attempt to do so, by force or threat of 
force, because of that other person's race, color, religion or national 
origin.''
  That hate crimes law was passed by our parents' generation to address 
the hate crimes so evident through the assassination of Martin Luther 
King and so many other actions in the 1960s.
  Now it is time for our generation to pass a hate crimes bill that 
will strengthen the work done by our forefathers 40 years ago and that 
will address new forms of hate crimes that have become far too 
prevalent in our society. We need to add provisions to prosecute those 
who commit violent acts based on gender, gender identity, disability, 
and sexual orientation.
  Of the 7,624 single-bias incidents reported in 2007, more than 16 
percent resulted from sexual orientation bias, indicating that members 
of the gay and lesbian community are victimized nearly six times more 
frequently than an average citizen.
  Just this past spring, we experienced a terrible incident in my home 
State. In March, two men, Samson Deal and Kevin Petterson, were 
visiting the Oregon coast during their spring break. They wandered away 
from an evening campfire and ran into a group of four strangers who 
asked if they were gay and then called them derogatory names. Then 
these two men were beaten brutally and left unconscious on the beach. 
This was in the town of Seaside, a place I have visited many times in 
my life, a beach I have walked on many times in my life. Seaside police 
chief Bob Gross said the Seaside police have ``had some hate crimes 
before, mostly threats, but have never dealt with anything this 
serious.''
  I am happy to report that Samson and Kevin lived through this 
incident, but many do not. The attack could have been worse. According 
to the National Coalition of Anti-Violence Programs, 2007 saw the 
greatest number of anti-LGBT murders in 8 years: 21 gay and transgender 
people were murdered in the United States in 2007--more than double the 
number of 2006.
  Currently, only 11 States and the District of Columbia include laws 
covering gender-identity-based crimes. We must make sure gender 
identity is a protected characteristic included in this legislation.
  But members of the gay community are not the only victims. We were 
all shocked last month when Stephen Johns, a guard at the Holocaust 
Museum, was shot and killed by a White supremacist. Recent numbers 
suggest hate crimes against individuals in the Hispanic community 
increased by a staggering 40 percent between 2003 and 2007.
  According to a recent report from the Leadership Conference on Civil 
Rights Education Fund, in the nearly 20 years since the enactment of 
the Hate Crimes Statistics Act, the number of hate crimes has hovered 
around 7,500 annually, nearly one every single hour. As if that figure 
is not high enough, it is well known that data collected on hate crimes 
almost certainly understates the true numbers because victims are often 
afraid to report these crimes or local authorities do not accurately 
report the incidents as hate crimes, which, unfortunately, means they 
do not get reported to the Federal Government.
  What specifically is in this legislation? It gives the Department of 
Justice the power to investigate and prosecute bias-motivated violence.
  It provides the Department of Justice with the ability to aid State 
and local jurisdictions.

[[Page 17966]]

  It makes grants available to State and local communities to combat 
violent crimes.
  It authorizes the Attorney General to provide technical, forensic, 
prosecutorial, and other assistance to State and local governments.
  It authorizes grants from the Justice Department of up to $100,000 
for State, local, and tribal law enforcement officials who have 
incurred extraordinary expenses in the prosecution or investigation of 
hate crimes.
  It authorizes the Treasury Department and Justice Department to 
increase personnel to better prevent and respond to allegations of hate 
crimes.
  It requires the FBI to expand their statistic gathering so we can 
better understand the types and structures of hate crimes in the United 
States of America.
  These provisions will strengthen the original facets of the 
legislation from 1969. That legislation, as I noted, addressed issues 
related to race, color, religion, or national origin. All of that is 
improved in this legislation.
  In addition, we expand this legislation to address the hate crimes we 
now see so prevalent in the LGBT community as victims.
  Our Constitution laid out a vision. We did not have complete equality 
under that vision in 1776. Indeed, it was a vision far ahead of its 
time. We have gradually worked toward it. We have extended our law to 
protect women, to include more folks to vote, to enable people to get 
rid of the racial boundaries that existed for voting, and so on. We 
have steadily sought to take strides toward that vision of equality 
under the law and the ability to pursue happiness without the fear of 
persecution. Today I am advocating that we take another important 
stride toward that vision our forefathers laid out before us.
  Martin Luther King said the long arc of history bends toward justice, 
but it doesn't bend by itself. It is bent by citizens who say this is 
wrong, and we are going to do something about it. This great 
strengthening of the hate crimes legislation in the United States is a 
huge stride toward equality under the law and freedom from persecution.
  I encourage all of my colleagues to join in taking this historic 
stride forward.
  Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. LINCOLN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Begich). Without objection, it is so 
ordered.
  Mrs. LINCOLN. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. LINCOLN. Mr. President, today I rise to speak in support of five 
amendments that I have introduced to the bill before us, the National 
Defense Authorization bill for fiscal year 2010. Each amendment focuses 
on improving the benefits and care for the members of our Nation's 
National Guard and Reserve forces so that we can improve military 
readiness and strengthen our efforts to recruit and train quality men 
and women to serve.
  I know each of us from our States recognizes the tremendous bravery, 
courage, and the dedication of our National Guard and reservists in 
each of our States. They are part of our community. They certainly, in 
many instances I know of from our seeing the deployments, are people of 
public service, but they are also people who are serving their 
communities. Whether they are firemen or police officers, maybe they 
are school principals, maybe they have small businesses that hire a 
tremendous number of people in those communities, they are hard-working 
Americans who also find time to serve their country. They are 
dedicated, they are brave, and we certainly know the critical role they 
play.
  It is a reality that our military is relying increasingly upon our 
reserve components as an operational reserve, not just simply a 
strategic reserve. My amendments reflect that reality by taking needed 
steps to honor the increased service and invest in these men and women 
who give so much on our behalf. When duty called, they stepped up to 
the plate, and now it is time for Congress to do the same.
  My first amendment is identical to the Selected Reserve Continuum of 
Care Act I introduced in May. This legislation will ensure that 
periodic health assessments for members of the Guard and Reserve are 
followed by government treatment to correct any medical or dental 
readiness deficiencies that are discovered at those screenings. We know 
we will begin to see these periodic health assessments, because they 
are mandatory beginning in September, and we need to make sure we 
follow up on these.
  As an operational force serving frequent deployments overseas, these 
men and women require greater access to health care so they are able to 
achieve the readiness standards demanded by current deployment cycles. 
Far too many men and women are declared nondeployable because they have 
not received the steady medical and dental care they need to maintain 
their readiness.
  We have all heard the horror stories of the military simply pulling 
soldiers' teeth and sending them on to Iraq and Afghanistan because 
they don't have the time to provide adequate dental care to bring them 
up to the medical/dental readiness status necessary in order to be 
deployed.
  Now that we are going to have mandatory assessment, there is no 
reason we would not want to provide them the medical care they need in 
order to meet that assessment. This is absolutely unacceptable, that we 
would not. And it is inexcusable. Considering the sacrifices we are 
asking them to make on our behalf, the least we can do is provide them 
the care they need to meet the readiness standards we have set. Pulling 
their teeth and rushing them to war is simply not going to get it done.
  This practice itself has become so prevalent, we now have a name for 
these men and women. They are called pumpkin soldiers. How absolutely 
awful is that? It is awful that it is such a prevalent practice that it 
has a nickname.
  Compounding this challenge is the fact that short-notice deployments 
occur regularly within the Reserve Forces. When men and women are 
declared nondeployable, it can cause disruption in the unit by 
requiring last-minute replacements from other units or requiring 
treatment periods that should be set aside for the predeployment 
preparation and training.
  Last year, prior to the second deployment of the Arkansas National 
Guard's 39th Infantry Brigade Combat Team to Iraq, members from 11 
units across our State were pulled to fill out the combat team. Some of 
these cross-leveled members had as little as 2 or 3 three weeks' notice 
prior to their deployment. They were having to fill in because when it 
came time, those who were in those units, the regular Guard and Reserve 
who were there, did not meet the deployable standards, and so 
consequently we had to pull people from all different units at a late 
notice to put them in there while these others met that medical and 
dental readiness.
  My amendment would prevent, in large, all of this from happening in 
the future by providing the necessary care at the front end of these 
assessments. Instead of compressing treatment costs into a short 
predeployment period or the bottlenecked medical support unit at the 
mobilization station, my amendment would spread the same costs over a 
longer period, with a more orderly and reliable result.
  We are having a huge debate right now on health care reform. One of 
the things we see is that if we can provide prevention or wellness, or 
certainly make sure that medical care gets there when we first detect 
what that medical problem is, the outcome is better and it is usually 
less costly in the overall. The further out from the deployment 
uncorrectable conditions are discovered, the more time a unit will have 
to replace a discharged member and mitigate the effects from that loss. 
So it is

[[Page 17967]]

not just the well-being of the soldiers we are looking at, it is also 
the well-being of the unit.
  We can and should do more to bring our Selected Reserve members into 
a constant state of medical readiness for the benefit of the entire 
force. My amendment does just that. That is why it has been endorsed by 
the Military Coalition, a consortium of nationally prominent uniformed 
services and veterans associations representing over 5.5 million 
members across this country.
  I am proud to have worked with Senators Landrieu, Tester, Risch, and 
Byrd on this important legislation and thank them for that support and 
realization of how important, how practical, and how much sense it 
makes for us to use these assessments to quickly provide the medical 
treatment that is necessary to ensure our soldiers, when they do 
receive those orders to be deployed, are meeting the medical and dental 
readiness they need to meet in order to be deployed.
  Mr. President, my second amendment calls for an increase in the 
Montgomery GI bill rate for members of the Selected Reserve to keep 
pace with their increased service and the rising costs of higher 
education. I am pleased my friend, Senator Mike Crapo, and I have 
joined in this effort. Mike and I have worked together on so many 
different issues, everything from wildlife to education and certainly 
with our military, representing States that have large rural areas and 
therefore large numbers of Guard and Reserve. It has also been endorsed 
by the Military Coalition as well, the group I mentioned earlier.
  This amendment would simply tie education benefit rates for guardsmen 
and reservists to the national average cost of tuition standard that is 
already applied to Active-Duty education benefit rates. We have worked 
hard to try to increase the educational benefit to be commensurate with 
the time these guardsmen and reservists are working on our behalf, who 
are so bravely deploying and working and serving alongside our Active-
Duty military. The problem is, now that we have increased their access 
to a more commensurate educational benefit, the value of that benefit 
is immediately losing value because they depend on the appropriators 
and us to increase that amount. When it is increasing at half the rate 
of the cost of higher education, then they are getting further and 
further behind each year in keeping that commensurate benefit at a rate 
that makes sense and certainly is adequate for their needs in 
education. I believe it is absolutely critical that we do this. It 
builds upon my Total Force GI bill, first introduced in 2006, which was 
designed to better reflect a comprehensive total force concept that 
ensures members of the Selected Reserve receive the educational benefit 
more commensurate with their increased service. The final provisions of 
this legislation became law last year with the signing of the 21st 
Century GI bill. Now it only makes sense that we would maintain that 
benefit at a rate, again--just at the rate of increase we are seeing in 
higher education. It certainly makes sense for our Guard and Reserve.
  My third amendment would lower the travel reimbursement threshold for 
National Guard and Reserve members who are traveling for drills from 
100 miles to 50 miles. Our current high threshold has caused undue 
hardships for members of the Selected Reserve, especially those in 
rural areas who often incur significant expenses because they have to 
travel significant distances. If we cannot ease their burden, I fear we 
are creating significant obstacles to recruiting and retaining men and 
women to serve in the Guard and Reserve--particularly during times of 
economic hardship. We saw the price of gasoline explode last year. We 
know how difficult it is, particularly for many of our Guard and 
Reserve who live in those rural areas. I believe this is a commonsense 
thing we can do on behalf of these brave men and women.
  I am so very pleased to be joined here by Senators Tester and Wyden 
in offering this amendment. It was among the recommendations of the 
independent Commission on the National Guard and Reserves. It is 
supported by numerous military and veterans service organizations. It 
only makes sense that we would appropriately provide them the 
reimbursement they need and the travel expenses to get to where they 
need to be for their drills and for their training.
  My fourth amendment would enable a valuable program, the National 
Guard Youth ChalleNGe Program, to expand to new cities and new sites 
and reach even more of our young troubled Americans. Currently 
operating in 22 States, the Youth ChalleNGe Program trains and mentors 
youth who have dropped out of high school. It puts them on a path to 
become more productive, employed, and law-abiding citizens.
  I recommend to any of my colleagues in this body who have not visited 
a National Guard Youth ChalleNGe Program to go and visit. I have 
visited our Youth ChalleNGe Program on more than one occasion and have 
been amazed, both at those who have graduated from that program and 
come back to mentor these other youths--who are disadvantaged, who have 
found themselves in the court system, have been thrown out of school, 
or are certainly in a troubled nature--and amazed at those who are able 
to come into this environment and to feel the security of the military 
and the rules of the military that prompt them into a sense of pride 
and a sense of courage and a sense of accomplishment so they finish 
their education and they go on to do so many great things, so many 
things that otherwise could have turned sour for these youths.
  As I said, I encourage any of the Members of this body, if you have 
never visited one of those National Guard Youth ChalleNGe Programs, I 
really encourage you to do so.
  For 22 weeks, these young men and women receive more than 200 hours 
of classroom learning designed to prepare them to take the general 
equivalency diploma exam. I attended the graduation of a class in 
Arkansas, and I can attest to the program's positive results.
  At a time when we know financial insecurity in our country is shaking 
our families, our youth who are finding themselves in, certainly, 
different circumstances than many of us did growing up, with all kinds 
of temptations and distractions and things that can put them on the 
wrong pathway, here we have an opportunity, when they start out on that 
wrong pathway, to grab them and put them into a program that is going 
to continue to build on the positive things they have to offer and set 
them on a good pathway.
  Since the inception of the National Guard Youth ChalleNGe Program, 
more than 85,000 young men and women have graduated from the program 
nationwide, and they have received their high school degrees. Nearly 80 
percent have gone to college, earned productive jobs, and joined the 
military. Currently, the Department of Defense provides 60 percent of 
the funding, while States are responsible for the remainder. 
Unfortunately, the current cap on funding has restricted many of our 
States from establishing additional programs or building on their 
existing programs.
  Along with additional funding, this amendment would help jump-start 
the Youth ChalleNGe Program by fully funding new programs for 2 years 
while they get their feet on the ground. When they better understand 
the tremendous value of this program and, more importantly, how their 
States can begin to invest in a program such as this, it ensures that 
the Federal Government's share is 75 percent into the future instead of 
the current 60 percent that it is right now.
  This amendment is endorsed by the National Guard Youth Foundation, 
the Enlisted Association of the National Guard of the United States, 
and the National Guard Association of the United States.
  I am so pleased to be joined by Senators Byrd, Casey, Cornyn, Hagan, 
Landrieu, Murkowski, Risch, Rockefeller, Snowe, Udall of Colorado, and 
Wyden in this effort. It is identical to the legislation I have 
previously introduced which has 32 bipartisan cosponsors. It is a great 
move, to help our children, particularly our troubled

[[Page 17968]]

children and, more importantly, it really sends them in the right 
direction so they can become contributing parts of this great Nation. I 
encourage my colleagues to look at this amendment and help us get it 
passed in this very important bill.
  Mr. President, you have been incredibly patient. I appreciate that 
patience, having to talk about five different amendments, but these are 
issues that are critically important to me and critically important to 
the people of Arkansas, particularly our Guard and Reserve.
  My final amendment is an amendment that would grant full veteran 
status to members of our Nation's Reserve Forces who have 20 or more 
years of service. I am joined in this effort by Senator Hutchison of 
Texas. This amendment is endorsed by the Military Coalition, which is 
the large group, the coalition of military groups.
  Under current law, members of Reserve components who have completed 
20 or more years of service are considered military retirees. At the 
age of 60, they are eligible for all the benefits received by Active-
Duty military retirees. Unfortunately, they are denied the full 
standing and honor that comes with the designation of ``veteran'' if 
they have not served a qualifying period of Federal Active Duty other 
than Active-Duty training. As a result, these men and women are 
technically not included in various veterans ceremonies and 
initiatives, such as an effort to have veterans wear their medals on 
Veterans Day or Memorial Day, or in legislation authorizing veterans to 
offer a hand salute during the playing of the national anthem or the 
presentation or posting of the colors.
  I don't know about you, but when I am at an event at home in 
Arkansas--or here as well but certainly at home--when I am surrounded 
by my family of Arkansas people and the flag comes down the parade or 
the colors are presented, I support making sure everyone who has stood 
up and said ``I am ready to serve my country when it calls on me'' 
should be given that respect of being noticed as a veteran.
  My amendment does not seek to change the legal qualifications for 
access to benefits. Instead, it simply seeks to correct this inequity 
by honoring and recognizing those who have served their country for 20 
years or more, those who have said continually over those 20 years: 
When my Nation needs me, if my Nation needs me, I will be there. I will 
take up my arms. I will do what is asked of me as a member of the 
military forces.
  Those men and women wore the same uniform, were subject to the same 
Code of Military Justice, received the same training, and spent 20 or 
more years being liable for callup whenever it did happen. This 
amendment recognizes their long careers of service and would entitle 
them to receive proper recognition as a veteran of the United States of 
America.
  I know of few designations that embody such dignity and honor. These 
men and women certainly embody those traits, and it is time we grant 
them the recognition they have earned.
  I ask my colleagues to give these efforts thoughtful consideration. 
These five proposals help us keep our promise to these brave men and 
women and will help to strengthen recruitment and retention for our 
National Guard and Reserve and increase their readiness as an operation 
force in the continued defense of this great Nation that we all love 
and are all so very pleased to be a part of.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REED. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REED. Mr. President, I rise in support of the National Defense 
Authorization Act for fiscal year 2010. First I wish to speak briefly 
about the Matthew Shepard Hate Crimes Prevention Act. Unfortunately, we 
have seen far too many cases of these types of crimes of violence 
motivated strictly by prejudice and hatred of people. This amendment 
would simply extend the current definition of Federal hate crimes to 
include crimes committed on the basis of someone's gender, gender 
identity, sexual orientation, or disability. This amendment does not 
federalize all violent hate crimes. Rather, it authorizes the Federal 
Government to step in as a backstop, only after the Justice Department 
certifies that a Federal prosecution is necessary. It also supports 
State and local efforts to prosecute hate crimes by providing Federal 
aid to local law enforcement officials. This amendment affirms our 
commitment to the most basic of American values--the dignity of the 
individual and the right of that individual to be himself or herself. I 
am pleased to lend my support. That is an issue we will confront in the 
context of our armed services bill, and I think we should go forward 
and adopt it.
  I wish to commend, with respect to the specifics of the armed 
services bill, my colleagues on the committee for their work, and the 
leadership of Senators Levin and McCain. I hope this is a bill 
President Obama can sign. During the committee's markup, I voted 
against an amendment to provide funding for additional F-22s and for 
the Joint Strike Fighter alternate engine. I remain opposed to these 
programs. We should not put this bill in jeopardy of a veto, so I urge 
my colleagues to vote, when it comes to the floor, for the Levin-McCain 
amendment to strike the F-22 funding, which I hope will be considered 
soon.
  As evidenced by the F-22 issue, this bill is the product of many 
tough decisions. I commend Secretary Gates particularly for his very 
judicious, thoughtful approach to this budget, and his uniformed 
colleagues. They have thought long and hard about the new world of 
threats. They have thought long and hard about how we can provide the 
most necessary resources for our men and women in uniform. They have 
recommended to us a very sound approach. With certain exceptions, the 
legislation before us recognizes and accepts those recommendations.
  The new administration and President Obama have also done a 
remarkable job in terms of trying to change strategic direction, change 
acquisition policies, and to develop a fighting force that will meet 
the threats of today and prepare ourselves for future possibilities. 
This Defense authorization bill contains many aspects which are 
critical to the success of our men and women in uniform. Let me suggest 
a few.
  First, it once again recognizes the extraordinary service and 
sacrifice of these young Americans by authorizing a much needed 3.4 
percent across-the-board pay raise. The extraordinary sacrifices they 
make every day can never be compensated by dollars and, indeed, their 
motivation is not financial. It is to serve the Nation and serve it 
with courage and fidelity. They do it so well. I have had the privilege 
to travel to Afghanistan and Iraq on numerous occasions and to witness 
the heroic and decent service of these remarkable people. This pay 
raise reflects, at least in part, the value we place on their service.
  The legislation fully funds Army readiness and depot maintenance 
programs to ensure that forces preparing to deploy are properly trained 
and equipped. It also authorizes $27.9 billion for the Defense Health 
Program and permits special compensation for designated caregivers for 
the time and assistance they provide to servicemembers with combat-
related catastrophic injuries or illnesses requiring assistance in day 
living. What we are seeing is success medically on the battlefield, 
where the mortality rates relative to the injuries have declined, as 
they have since World War II. But we have a significant population of 
very severely wounded young men and women. They need help, and the 
caregivers need help. This legislation recognizes that.
  The legislation fully funds the President's budget request of $7.5 
billion to train and equip the Afghan National Army and the Afghan 
National Police

[[Page 17969]]

forces. The bill also includes a provision that emphasizes the need to 
establish measures of progress for the administration's strategy for 
Afghanistan and Pakistan and to report to Congress regularly on efforts 
to achieve progress in that region. I saw the merits of this approach 
in my recent trip with Senator Kaufman to Pakistan and Afghanistan in 
April. In fact, as we observe the increased tempo of operations in 
southern Afghanistan, led by our marines and British forces, we also 
recognize the need to partner with more Afghani police and security 
forces and military forces. Our strategy can't be just an American 
presence. It has to be an American-Afghani presence, which ultimately 
will translate to an almost exclusive, if not exclusive, Afghan 
presence. To do that, we have to support the building and the 
professionalization of Afghan security forces.
  There is within this budget funding for our Navy that is absolutely 
critical. It includes funding to complete the third Zumwalt class 
destroyer. This ship is critical to maintaining the technical 
superiority of our Navy that it enjoys across the oceans of the world. 
The future maritime fleet must be adaptable, affordable, survivable, 
flexible, and responsive. The Zumwalt class provides all these 
characteristics as a multimission service combatant, tailored for land 
attack and littoral dominance. It will provide an independent presence, 
allow for precision naval gunfire support of joint forces ashore and, 
through its advanced sensors, ensure absolute control of the combat 
airspace. All of this capability is based on today's proven and 
demonstrated technologies. We can't build the same ships we were 
building 20 years ago and hope to maintain our superiority and, indeed, 
hedge against the emerging threats of tomorrow.
  This Zumwalt technology is also the transition to the next class of 
surface combatants, which are likely to be a new class of cruisers. The 
hope is that we can leverage what we learn on Zumwalt so that the next 
class of surface combatants will be even more capable and, we hope, 
extremely cost efficient.
  I also note that the underlying legislation fully funds the continued 
procurement of the Virginia class attack submarine. These attack 
submarines are on the highest level of demand by area commanders. The 
CINCs, when they are asked what they need in terms of resources, 
invariably place very close, if not on the top of their list, 
additional submarines because of their stealth, their ability to 
operate intelligence areas, and their ability to have a forward 
presence without being recognized. These are critical, and I am pleased 
by the recognition of the administration and the committee in this 
regard.
  This year I was once again extremely fortunate and honored to serve 
as the chairman of the Emerging Threats and Capabilities Subcommittee. 
I particularly thank and commend Senator Wicker and his staff. They 
were true collaborators. Their cooperation was significant in terms of 
improving the quality of our subcommittee report. We have worked 
together very well. I, again, particularly commend and thank Senator 
Wicker for his insights, his energy, and for his great collaboration in 
this effort. The Emerging Threats and Capabilities Subcommittee is 
responsible for looking at new and emerging threats to our security and 
considering appropriate steps we should take to develop new 
capabilities to face these threats. In preparation for our markup, 
Senator Levin provided guidelines for the work of the committee 
including the following two items: Improve the ability of the Armed 
Forces to counter nontraditional threats, including terrorism, the 
proliferation of weapons of mass destruction, and their means of 
delivery; and, second, enhance the capability of the Armed Forces to 
conduct counterinsurgency operations.
  In response, our subcommittee recommended initiatives in a number of 
areas within our jurisdiction. These areas include supporting critical 
nonproliferation programs and other efforts to combat weapons of mass 
destruction; supporting advances in medical research and technology to 
treat such modern battlefield conditions as traumatic brain injuries 
and post-traumatic stress disorder; increasing investments in new 
energy technologies such as fuel cells, hybrid engines, and alternate 
fuels to increase military performance and reduce cost; increasing 
investments in advanced manufacturing technologies to strengthen our 
defense industrial base so that it can rapidly and efficiently produce 
the materiel needed by the Nation's warfighters; and increasing 
investments in research at our Nation's small businesses, government 
labs, and universities so that we have the most innovative minds in our 
country working to enhance our national security.
  Specifically, some notable actions in this bill that originated in 
the Emerging Threats and Capabilities Subcommittee include: authorizing 
full funding for the Special Operations Command and adding $131.7 
million to meet unfunded equipment requirements identified by the 
commander of our Special Forces to enable them to conduct 
counterinsurgency operations and to support ongoing military 
operations; authorizing full funding requested for the Joint IED Defeat 
Organization, JIEDDO. This is particularly important as we read about 
the increasing IED attacks against our forces in Afghanistan since our 
offensive began in Helmand Province weeks ago. These IEDs are the No. 1 
threat to our forces in the field and our allied forces in the field. 
This very sophisticated organization uses the information technology, 
innovation, communication, and new techniques, working closely with 
battlefield commanders, to protect our forces and our allied forces. 
They have a critical role and a critical mission. We fully support both 
in this legislation.
  We authorize the Cooperative Threat Reduction Program, providing an 
additional $10 million for new initiatives outside the former Soviet 
Union. We provide $3 million for chemical weapons demilitarization in 
Russia and elsewhere, and $7 million for strategic offensive arms 
elimination. We have to recognize that these weapons are distributed 
too broadly in many respects, and our efforts to restrict them and to, 
we hope, dismantle them have to be broad also.
  We added $50 million to nonproliferation research and development for 
nuclear forensics and other R&D activities and required the development 
of an interagency forensics and nuclear attribution program. One of the 
hopes--and this must be based on very calculable scientific and 
technological research--is that if we can identify the source of a 
nuclear detonation positively, we would have an extraordinarily 
powerful deterrent card which we could use diplomatically to indicate 
that if any nation, particularly covertly, attempts, directly or 
through terrorist groups, to deploy a nuclear weapon anywhere in the 
world, we could trace it back and respond immediately. That could give 
us, again, an enhanced deterrence. This depends upon the progress we 
make in research, but we must begin with energy research. We have that 
in the legislation.
  The bill also highlights the importance of a strong manufacturing 
industrial base. The bill would create a new position, the Assistant 
Secretary of Defense for Manufacturing and Industrial Base, to oversee 
the Department's policies and programs for our Nation's industrial 
base. Further, the bill increases funding for manufacturing research in 
DOD by roughly $100 million to support the defense industrial base and 
reduce the cost of production of weapons systems and our ability to 
meet surge requirements demands of operating forces.
  This bill also reauthorizes the DOD's Small Business Innovation 
Research program, in coordination with the efforts of Senator Mary 
Landrieu, chairman of the Senate Committee on Small Business and 
Entrepreneurship. To support investments in next-generation 
technologies and advanced military capabilities, this bill would 
increase the Department's funding for innovative science and technology 
programs by over $480 million for a total of $12.1 billion.

[[Page 17970]]

  The bill authorizes the full funding that was requested for chemical 
and biological defense programs and the full amount requested for 
chemical weapons demilitarization in the United States. This funding 
totals over $3 billion.
  With regard to counterdrug programs, the bill fully funds DOD drug 
interdiction and counterdrug activities. It also includes a provision 
that would extend the authority to use counterdrug funds to support the 
Government of Colombia's unified campaign against narcotics cultivation 
and trafficking and against terrorist organizations involved in such 
activities. It also recommends a $30 million increase in funding for 
high priority National Guard counternarcotics programs.
  This issue of narcotics is particularly central to our efforts in 
Afghanistan. When I was there in April, we were in Helmand Province 
which was covered, literally, with opium poppies. The opium trade 
provides support for opponents of the Taliban. If we disrupt that trade 
and we are able to reduce the flow of resources to the Taliban but also 
provide legitimate family farmers with the opportunity and the 
profitability to grow alternate crops, then we can make a successful 
dent in the power and the presence of the Taliban there. These 
counternarcotics programs, not only in Colombia but also in 
Afghanistan, are absolutely important.
  This is a good bill. It is, I think, wise legislation, with the 
exceptions I noted. Members of the committee and the committee staff 
have worked many hours to get this bill to the floor. We are a nation 
engaged in two conflicts and an ongoing struggle in many parts of the 
world to intercept, interdict, and preempt terrorists. We need to 
support our military forces, and I urge my colleagues to work together 
to pass it so we can quickly have a conference with the House and send 
it to the President for his signature.
  With that, Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BURRIS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Udall of New Mexico). Without objection, 
it is so ordered.
  Mr. BURRIS. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          Sotomayor Nomination

  Mr. BURRIS. Mr. President, the Judiciary Committee is hearing the 
testimony from the distinguished Judge Sonia Sotomayor. Today I rise in 
strong support of Judge Sonia Sotomayor's nomination to the U.S. 
Supreme Court.
  I believe that while Judge Sotomayor's expansive legal experience 
makes her a logical choice, it is her background and unique perspective 
that will make her an ideal selection for a seat on our Nation's 
highest Court.
  Certainly no one can argue with Judge Sotomayor's legal 
qualifications. After graduating from Princeton University and Yale Law 
School, she served as an assistant district attorney and then had a 
successful legal practice of her own.
  In 1991, President George H.W. Bush appointed Ms. Sotomayor as the 
first Hispanic judge to the U.S. District Court in New York State.
  Eight years later, President Clinton elevated her to the U.S. Court 
of Appeals, where she serves today.
  Throughout her distinguished career, Judge Sotomayor has been a 
prudent and thoughtful jurist. She has constantly exhibited the highest 
standards of fairness, equality, and integrity.
  I was proud to write to President Obama on May 15 urging her 
nomination. However, it is not simply Judge Sotomayor's wealth of legal 
experience and long public record that make her the best possible 
candidate for the Supreme Court. Her life story will make her a dynamic 
and thoughtful addition to that august body.
  Born into relative poverty and raised in a housing project in the 
Bronx, young Sonia's childhood was remarkable in that it was 
overwhelmingly normal. She was not a child of privilege. Yet she had 
come to value her cultural traditions while also embracing the need for 
judicial objectivity and legal impartiality. This delicate balance is 
precisely what will make her such an important voice on the Supreme 
Court.
  As we consider her nomination, we must bear this in mind. When we 
evaluate the makeup of the Court, we seek to build dissent rather than 
consensus. We seek to engender debate among its members. Diversity--of 
prospective, of background, of opinion--lends legitimacy and integrity 
to judicial rulings.
  Throughout her career, Sonia Sotomayor has proven herself to be a 
moderate, restrained judge whose rulings are bound by the weight of 
precedent. Judgment must remain free from passion, but passion for the 
law cannot be lost. Ms. Sotomayor carries with her a lifetime of that 
passion--something I consider a valuable asset.
  As a Supreme Court Justice, Judge Sotomayor will bring much-needed 
diversity and a rich understanding of the American dream to every 
opinion she writes. All that she has she has achieved on her own merit, 
and it is this relatable quality that will lend fresh perspective to 
the Court.
  I applaud President Obama's nomination of Judge Sotomayor. As her 
confirmation hearings continue, we must ensure they are tough but fair. 
We must hold her to the same standard to which we would hold any 
nominee. And just as the Senate has confirmed her twice before, I am 
confident we will do it once again, with strong bipartisan support this 
time.
  It will be an honor for me to cast my vote in favor of her 
confirmation when the time comes. I look forward to the day when she 
takes her rightful seat on the bench in the highest Court in our land.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DORGAN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             Climate Change

  Mr. DORGAN. Mr. President, in recent days and weeks, the House of 
Representatives has passed legislation sponsored by Congressman Waxman 
and Congressman Markey, called the American Clean Energy and Security 
Act of 2009, that deals with the issue of climate change. And more 
specifically, it deals with taking steps to decarbonize the energy use 
in this country in order to protect the planet.
  I support the goals of a low-carbon future by decarbonizing our 
energy sources to reduce emissions of greenhouse gases into the 
atmosphere. The scientific consensus is that by maintaining our current 
course of burning fossil fuels and emitting greenhouse gases we are 
threatening our planet with future warming. So I support the goal of 
trying to deal with this issue of climate change.
  The question is, how do we address it? How do we move forward to meet 
this challenge? The House of Representatives has established one 
approach. I think we need to explore other approaches that still 
achieve the goal of reducing our carbon emissions. This is a very big 
issue with consequences for virtually all Americans--for families, for 
businesses, and for our climate.
  The question for us is: How do we move forward in a way that allows 
us to use our energy resources in a such a way as to protect the 
environment and grow the economy?
  Now, we all wake up in the morning and begin our day taking energy 
for granted. One of the first things we do, for example, is flick a 
switch and a light comes on, plug in a hair dryer, or turn on the 
toaster oven. In so many different ways, virtually everything we do 
involves using energy. We get in our cars and drive to work, or we get 
on a

[[Page 17971]]

subway. In both cases, we are using energy. And no doubt about it, we 
are using a lot of energy.
  The current Secretary of Energy, Dr. Chu, is a Nobel Prize-winning 
scientist. I once heard him use the following analogy to describe how 
we use energy today. He talked about going back a couple thousand 
years. For most of human history, we move no faster than a horse could 
take us. A couple thousand years ago, if someone wanted to go out and 
find something to eat, he got on a horse.
  These days, of course, times have changed. We still use horses, but 
in a different way. We measure the power of our engines in horsepower. 
If one wants to go get a loaf of bread, then we simply jump in a truck 
and crank up about 270 horses, and away we go to the grocery store.
  We never think much about the advantage of having energy at our 
command at almost any moment, and we certainly don't think--and haven't 
thought very much--about what the use of that energy does to the 
climate.
  So here we find ourselves in the year 2009 with what the vast 
majority of scientists say is a very serious problem for the future of 
this planet and the security of our civilization. Most of our energy is 
fossil energy. That's the carbon from plants that has accumulated as 
coal and oil over millions of years. As we burn these fossil fuels to 
power our economy, we release that carbon back into the atmosphere. The 
accumulation of these greenhouse gases warm the planet and cause other 
harmful consequences. Therefore, we need to try to find a way to 
decarbonize our energy to bring about a low-carbon future, and thereby 
lower our emissions of CO2 into the atmosphere.
  So how do we do that? Well, as I indicated, the House of 
Representatives has written a bill, Waxman-Markey. It is a 1,427-page 
bill, and very, very complicated, I might add.
  Let me describe another path. The Senate Energy Committee worked to 
write a new Energy bill. It was completed some weeks ago and passed 
with bipartisan support.
  Let me describe just a bit of what we have done in that Energy bill: 
We included provisions to reduce our dependence on foreign oil; 
increase domestic production of electricity; electrify and diversify 
our vehicle fleet; create a transmission superhighway so we can produce 
renewable energy where it is most plentiful, and then put it on the 
transmission grid to move it to the load centers where it is needed; 
and train our energy workforce of tomorrow.
  These are just a few of the things we have done. We establish a 
national renewable energy standard of 15 percent by 2020. And I believe 
the standard needs to be stronger. But the fact is, this is the first 
time the Senate has sent a clear signal by demonstrating support for 
such a standard. This standard says: We want to maximize the production 
of renewable energy, which means a carbon-free energy source.
  We are producing green energy when we take energy from the wind, 
gather energy from the Sun, and put that electricity on a transmission 
grid to send it to where it is needed. This is an essential step to 
building the low-carbon economy we need to address the threat of 
climate change. And our energy bill does so much more to set the stage 
for helping address climate change.
  When we talk about energy, climate is one of the twin challenges that 
we need to address. With respect to the vulnerability of our country, 
we must also consider our energy insecurity. It is the case that we 
import 70 percent of our oil coming from off our shores. We need to put 
into place an energy policy that will make us less dependent on foreign 
oil. One way to reduce our oil dependence is to electrify our vehicles. 
Moving toward an electric drive transportation system has the benefit 
of replacing foreign oil with domestic electricity. Further, as we 
decarbonize our electricity generation, we get the additional benefit 
of reducing the greenhouse gas emissions from our transportation 
sector. Our legislation moves aggressively to promote electrification 
of our vehicles.
  In addition to producing more renewable energy, the Energy bill 
expands the production of energy in this country by opening some areas 
that have not been opened in the eastern Gulf of Mexico to oil and gas 
development. As my colleagues know, natural gas is a cleaner-burning 
and lower carbon fossil fuel. We need to increase production of natural 
gas where it is appropriate. So the Energy bill does many things to 
move toward the low-carbon future we need to ensure the security of our 
planet and our nation.
  So I believe we ought to take up the piece of legislation we passed 
in the Energy Committee, bring it to the floor of the Senate, debate 
it, and pass it. I have talked about this at some length in recent 
weeks. I think the Energy bill we have produced is a significant step 
toward addressing the climate change challenge.
  So it seems to me it would make sense to do the energy piece first, 
get it to the President, and get it signed. With that progress in 
addressing climate change in the bank, we should then legitimately be 
able to boast about what we have done in a significant way to maximize 
the production of green energy from wind, solar, and biomass. This 
would not be an insignificant achievement. I think we ought to do that.
  Second, I would like to discuss the question of cap and trade or 
Waxman-Markey or some other carbon-constraining piece of legislation 
for a moment. Clearly, the Senate is going to deal with this issue. My 
preference would be that we not take up the Waxman-Markey bill in its 
current form. I know a lot of work has gone into that legislation, but 
my preference would be that we start to explore other directions.
  It is not that I oppose capping carbon. I believe we need to move 
toward a low-carbon future. I believe we will have to cap emissions of 
carbon. The question is what are the appropriate targets and timelines 
that would allow us to mitigate climate change and at the same time, 
prevent a substantial disruption to our economy. We have to be careful 
to avoid creating targets and timelines for reducing CO2 
emissions that are simply unachievable.
  We have a lot of people across this country who are doing inventive 
work--interesting, world-class, cutting-edge research. They are working 
to create the next generation of technologies that could unlock the 
opportunity of capturing and sequestering carbon dioxide, or developing 
ways to beneficially reuse CO2. These technologies hold the 
promise of allowing us to continue to use our abundant fossil fuels 
while protecting our environment. I am convinced--absolutely 
convinced--that we will achieve that goal. The opportunity, through 
research, to unlock the mystery of how we separate and capture carbon, 
store it or reuse it beneficially, is critical, and I am convinced we 
will do that. I don't think there is much question about that. But what 
I have difficulty with is not the goal. I am for a low-carbon future. I 
believe we are going to move in that direction, and I will support that 
goal.
  I do not support, however, establishing a new trading system for 
carbon securities, as would be the case under the 400-page cap-and-
trade provision of the House bill. Let me describe why.
  In my judgment, there are better ways to deal with these issues than 
establishing a very substantial carbon securities trading system. Such 
a system is ripe for the biggest investment banks and the biggest hedge 
funds in the country to sink their teeth into these marketplaces and 
make massive amounts of money. My profound feeling about this is that 
we have seen now a decade in which many of these markets have been 
manipulated and have failed to work at all with respect to the market 
signals of supply and demand. I have very little interest in consigning 
our low-carbon future to a trading system of carbon securities that 
will be controlled by the biggest trading companies in the world. And 
it would not be very long before these entities will have created 
derivatives, swaps, synthetic CDOs, and more. It will be a field day 
for speculation, which I think is not in the interest of this country.

[[Page 17972]]

  Let me just describe something I think might be a harbinger of things 
to come. Here is chart showing how oil prices soared in 2008. We all 
remember what has happened to oil prices in the last two years. They 
went from $60 a barrel up to $147 a barrel in day trading last July. 
Even as the price of oil was going through the roof, the best experts 
looking at supply and demand were predicting that the price of oil 
would only slowly increase over many months. They said: Well, here is 
where we think the price of oil is going to be. Straight on across, 
through the end of the year. Here is what they suggested in May of 
2007, and here is the price.
  The fact is, the price of oil shot up like a roman candle. Here is 
what they suggested in January 2008. Here is the price they predicted, 
but the price went up much more quickly. Why is it we have an oil 
futures market in which supply and demand doesn't determine where the 
price goes? The price goes right off the chart, and yet supply was up 
and demand was down.
  So what we saw in the oil futures market last year should be a wake-
up call. This included speculators engaged in about two-thirds or 
three-fourths of all the trades. They were trading at 20 to 25 times 
the amount of oil that is produced every single day, and creating an 
orgy of speculation as shown by the red line on this chart--and by the 
way, it went right down like a roller coaster. And the same people who 
made money going up made money when prices went back down. If we like 
that sort of thing, we are going to love the carbon market piece in cap 
and trade because we are going to create a big, perhaps trillion-dollar 
market for carbon securities. It would not be long before the same 
investment banks and hedge funds will all be engaged in trading carbon 
derivatives, swaps, and you name it.
  I happen to think that makes no sense at all. The New York Times 
said: Managing emissions has become one of the fastest growing 
specialties in financial services. Investment banks like Goldman Sachs 
and Morgan Stanley have rapidly expanded their carbon businesses.
  I am told, by the way, that most of the large investment banks right 
now have created carbon trading units.
  Charlotte Observer: Firms such as Goldman Sachs and Morgan Stanley 
already have carbon desks and teams . . . Peopling those carbon desks 
are the former commodities traders or former securitization or 
structured finance professionals--like many who've lost jobs at 
Wachovia (now Wells Fargo) and Bank of America . . .
  The New York Times says in a news story: As Congress gears up for a 
debate on a national ``cap-and-trade'' program to limit greenhouse gas 
emissions, resumes from Wall Street--or from ex-Wall Streeters--are 
flooding into the Nation's few carbon-trading shops.
  Chris Leeds, the head of emissions trading, carbon trading at Merrell 
Lynch, said carbon could become: one of the fastest-growing markets 
ever, with volumes comparable to credit derivatives inside of a decade.
  Louis Redshaw, head of Environmental Markets Barclays Capital says: 
Carbon will be the world's biggest commodity market, and it could 
become the world's biggest market over all.
  So do we want to sign up for a future in which we consign our ability 
to constrain carbon and protect this planet by creating a carbon 
securities market that, in my judgment, would likely subject us to the 
same vision of the last decade with unbelievable speculation, movements 
in markets that seem completely disconnected from supply and demand? 
That is not a future I want to see happen.
  There are other ways of capping carbon and addressing these issues. I 
want to be clear, I am for capping carbon. I am for a low-carbon 
future, but, in my judgment, those who would bring to the floor of the 
Senate a replication of what has been done in the House, with over 400 
pages describing the cap and ``trade'' piece, will find very little 
favor from me, and I expect from some others as well. There are better, 
other, and more direct ways to do this to protect our planet.
  I have been to the floor many times talking about what has happened 
with credit default swaps, what has happened with CDOs, what has 
happened with the oil futures market, on and on and on. If what has 
happened gives anybody confidence, then they are in a deep sleep and 
just don't understand it. Again, I come back to the chart I showed a 
moment ago, the head of emissions trading at Merrill Lynch saying 
carbon could become one of the fastest growing markets, with volumes 
comparable to credit derivatives.
  Think of this, the unbelievable volumes of credit derivative swaps 
that most people couldn't even pronounce and didn't know existed, and 
it turns out we had tens of trillions of dollars worth of these things, 
and worldwide these products were supposedly worth hundreds of 
trillions of dollars.
  Frankly, I think it is not in the country's interest to establish a 
new financial market and to have the same players engage in the same 
games that gamble on this country's future.
  I think two things: No. 1, there is a piece of energy legislation 
that is ready to come to the floor, passed by the Energy Committee, 
that moves in the direction of addressing climate change. We ought to 
get the benefit of that legislation and pass that bill along to the 
President for signature. It maximizes renewable energy, and there are a 
lot of things that will dramatically reduce the impact of our carbon 
footprint.
  No. 2, those in the Senate who are working very hard and talking 
about the issue of climate change, and how we can take steps to cap 
carbon, and what kind of a low-carbon future we might be able to 
achieve. There are some of us--and I speak only for myself--who believe 
cap and ``trade'' in terms of speculative carbon futures markets makes 
no sense. We ought to explore a carbon cap with different approaches.
  I wanted to raise these concerns at this point, so that those who are 
working on the climate change bill and attempting to replicate the 
House approach will understand that some of us will aggressively resist 
the carbon market ``trade'' side of cap and trade.
  The PRESIDING OFFICER. The Senator from Kentucky is recognized.
  Mr. BUNNING. Mr. President, I ask to speak in morning business for up 
to 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          Sotomayor Nomination

  Mr. BUNNING. Mr. President, today I rise to speak on the nomination 
of Judge Sotomayor to be a Justice on the U.S. Supreme Court. After 
much consideration, I cannot support this nomination.
  I have been following this process closely. I have been reading her 
rulings and her speeches. I have been watching her hearing at the 
Senate Judiciary Committee. I met with her one on one and was able to 
ask her questions. Unfortunately, I find her to be unsuitable as a 
member of the U.S. Supreme Court.
  The first problem I would like to discuss is her lack of direct 
answers to direct questions. I had this problem in my meeting with her 
and it appears from watching the Judiciary Committee hearings that 
other Members have had that problem too. My biggest concern in this 
area is that she answered the questions from the perspective of the job 
she has, not the job she has been nominated for. As a member of the 
district or circuit court, she must rely heavily on precedent. However, 
as a Justice of the Supreme Court, she is in the position to set 
precedent. When I asked her simple questions about how she would treat 
certain subjects, she retreated to saying that she would use precedent 
to decide how to proceed. I found this unsatisfactory because she would 
be setting precedent as a member of the Supreme Court. In fact, 
throughout her nomination process I have seen her sidestep direct 
questions time and time again. We have seen this happen numerous times 
during her hearing before the Judiciary Committee. I think we deserve 
answers to these questions and we have not gotten them.
  However, we can learn about her views and how she might perform on 
the Supreme Court by studying her

[[Page 17973]]

record. She has an extensive record, which includes 17 years as a judge 
and, prior to that, time spent as a prosecutor, in private practice, 
and as a member of groups such as the Puerto Rican Legal Defense and 
Education Fund. This gives us much to look at, such as her decisions, 
speeches, and other sources. I have studied these and I would like to 
comment on them and her views.
  When I spoke on the nomination of Chief Justice John Roberts in 2005, 
I pointed out the problem of the Supreme Court and other judges trying 
to replace Congress and State legislatures. Important social issues 
have been taken out of the political process and decided by unelected 
judges. I can say with certainty that this was not the way the Founding 
Fathers and authors of the Constitution intended for it to work.
  The creation of law is reserved for elected legislatures, chosen by 
the people. The Supreme Court is not a nine person legislature created 
to interact with or replace the U.S. Congress. When judges and justices 
take the law into their own hands and act as if they were a legislative 
body, it flies in the face of the Constitution. Because of this, 
whether in the Supreme Court or in lower courts, many people have lost 
respect for our judicial system. This cannot continue to happen. In 
addition to obvious constitutional concerns, if someday the public and 
the rest of the political system begin to tune out the courts and 
ignore their decisions altogether, it would be grave for our country.
  During their confirmations, I felt that Chief Justice Roberts and 
Justice Alito understood this. That is probably the biggest reason why 
I voted for them. I am afraid that I cannot say the same about Judge 
Sotomayor.
  Much has been said about Judge Sotomayor's ``wise Latina woman'' 
comments. Even though they have been discussed many times over, they 
are still relevant and speak to her views on the role of judges. In her 
infamous 2001 speech, she said that ``a wise Latina woman'' would 
``more often than not reach a better conclusion than a white male.'' 
This shows a clear method of her thinking and indicates she accepts the 
idea that personal experiences and emotions influence a judge's 
rulings, rather than the words of the law and the Constitution.
  She used the ``wise Latina woman'' phrase in at least four other 
speeches, most recently in 2004. The fact that it was repeated so often 
indicates that she believes it. She has said that the notion of 
impartiality on the bench is ``an aspiration'' and has gone on to claim 
that ``by ignoring our differences as women or men of color we do a 
disservice both to law and society.'' When President Obama began 
discussing what sort of person he wanted to nominate to Supreme Court, 
he put a premium on the nominee having ``empathy.'' Well, it appears 
that he got his wish.
  Empathy in and of itself is not a bad thing. However, in this context 
it means that the law would lose out to a justice who feels an 
emotional pull to rule one way or the other. Empathy belongs best in 
legislatures, where it can reflect the wishes of the people who voted 
for the members of those bodies. This is not the job of the Supreme 
Court, or any other court of law for that matter. I do not have faith 
that Judge Sotomayor would fully respect the roles of the judiciary and 
the legislature.
  While understanding that the role of the Supreme Court is 
interpreting law instead of making it might be the most important 
quality of a Justice, there will be times when precedent must be set 
and it is crucial that this is done correctly. Now, I understand a 
nominee's hesitancy to discuss a case or issue that might come before 
them, but I do think they can explain their methods for arriving at a 
conclusion. During the confirmation hearings of Justices Roberts and 
Alito, they were both willing to walk through their decision making 
process. However, Judge Sotomayor has been unwilling to do even this. 
It is unfortunate, but I have no basis to understand how Judge 
Sotomayor will think through a case as a member of the highest court in 
the land.
  Her views on race, as seen in the Ricci case, are troubling. The city 
of New Haven decided to throw out the results of their firefighter 
promotional exam because they felt that not enough minorities had 
passed it. Many who passed that exam had made great sacrifices to 
prepare for the test, including the lead plaintiff, Frank Ricci, who 
overcame a disability to pass it with flying colors. Seventeen White 
and one Hispanic firefighter filed suit that this was reverse 
discrimination and Meir case eventually found its way before Judge 
Sotomayor at the Second Circuit. She dismissed their claims in a one-
paragraph opinion that cited no precedent and was later roundly 
criticized by judges of all stripes. Fortunately, just last month, the 
Supreme Court overturned this erroneous decision.
  Judge Sotomayor also has shown an unacceptable hostility to second 
amendment rights. In the recent Heller Supreme Court ruling, it was 
found that the second amendment confers an individual right to keep and 
bear arms. However, in two cases Judge Sotomayor has lent her name to 
extremely brief opinions that the second amendment is not a fundamental 
right. Her rulings, and the lack of explanation on them, indicate that 
she is hostile to the second amendment and will not protect it with the 
same energy as she might for any of the other nine amendments in the 
Bill of Rights. She has not stated that she believes a clearly spelled-
out right, such as the second amendment, is fundamental, but she is 
willing to recognize that something that is not clearly spelled out, 
such as a right to privacy, is fundamental. I fear that her appointment 
to the Supreme Court could undo the progress from the Heller decision 
that recognizes Americans have the right to defend themselves.
  Another area of concern is Judge Sotomayor's views on the use of 
foreign law in American courts. Less than 3 months ago, she said she 
believes ``that unless American courts are more open to discussing the 
ideas raised by foreign cases, and by international cases, that we are 
going to lose influence in the world.'' First of all, the Court's 
responsibility is to review the laws passed by the government that it 
is a part of, not laws passed by a foreign government. Second of all, 
if there is a foreign law that looks like a good idea, then an elected 
legislature should consider it and, if it has merit, pass it into law. 
Judges should not be looking around the country or the globe for laws 
they like and then try to implement them.
  Judge Sotomayor has a history of writing or signing on to brief and 
inadequate opinions that are not suitable for the gravity of the 
matters on which she is ruling. In the Ricci firefighter case I 
discussed earlier, half of the judges on her court criticized her 
opinion as ``perfunctory disposition'' that ``rests uneasily with the 
weighty issues presented by this appeal.'' The opinion was only one 
paragraph long. When the Supreme Court issued its majority opinion on 
that case, it was 34 pages long. In one case I mentioned above, she 
joined the summary panel opinion and discarded the idea of the second 
amendment as a fundamental right in a one-sentence footnote. This is 
unacceptable.
  What is perhaps the most shocking about these exceedingly brief 
investigations of the law is that they affected very important cases 
and very important issues. For instance, the Ricci case could become 
the affirmative action case of this generation, and it received only a 
one-paragraph analysis from Judge Sotomayor. Her casual treatment of 
the second amendment cases flies in the face of the efforts the Supreme 
Court has put in these decisions. The U.S. Supreme Court is the last 
stop for important legal decisions, and a Justice must provide 
explanation and insight to the country on how and why they ruled the 
way they did. Judge Sotomayor did not do that for these extremely 
important cases.
  This will be the first time I have ever voted against a Supreme Court 
nominee, and I am not happy I have to do so. However, it is the 
constitutional

[[Page 17974]]

role of the Senate to provide confirmation for this position and my 
duty as a Senator to be part of this process. On viewing the record of 
Judge Sotomayor, I do not find her to be a suitable candidate for 
Justice of the Supreme Court of the United States and will vote against 
her whenever the Senate considers her nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. DeMINT. Mr. President, I have to say there have been some amazing 
proposals coming out of the House and the Senate in the last few weeks 
in some fairly desperate economic times, when job loss is at some of 
its highest rates in years, when borrowing and spending have gone 
through the roof. It is pretty amazing that we have come out with 
proposals, such as cap and trade, that are going to add huge taxes on 
electricity and other energy when we should be doing all we can to 
create more energy in our country and to lower the cost, if possible, 
for Americans. It is pretty amazing to me that we would consider adding 
taxes and cost onto the cost of living when so many are out of work and 
we are in very difficult economic times.
  Now we see this health care proposal that the Congressional Budget 
Office says is going to hurt our economy, it is going to insure very 
few uninsured people, and it will cost trillions of dollars. Again, at 
a time when we are having difficulty paying the interest on the debt we 
already owe, we have proposed this massive expansion of government.
  Here we are today supposedly discussing funding for our whole defense 
system in our country, the Defense authorization bill, and the majority 
has decided to add on to that bill hate crimes legislation. They 
apparently have scheduled a vote at 1 a.m. tomorrow morning for hate 
crimes legislation in the middle of a defense authorization debate 
which should be bipartisan, should be focused on the defense of our 
country, a clear constitutional responsibility. But we are spending the 
day waiting for a cloture vote at 1 a.m. tomorrow morning on hate 
crimes.
  There are many practical problems with this hate crimes amendment 
they are trying to force us to attach to the Defense authorization 
bill. The broad language will unnecessarily extend Federal law 
enforcement beyond its constitutional bounds, it will undermine the 
effectiveness and confidence of local law enforcement, and it will 
create conditions for arbitrary and politicized prosecution of certain 
cases. But instead of the practical problems, I want to focus on basic, 
fundamental problems with Federal hate crimes legislation.
  The rule of law requires that we oppose this amendment on principle. 
Justice is blind, and under the rule of law justice must be blind--
blind to the superficial circumstances of the victims and the 
defendants.
  The law says crime must be investigated and punished. There is no 
evidence to suggest that crimes defined by this amendment as hate 
crimes are not being prosecuted today. This amendment is, therefore, 
unnecessary as a matter of criminal law.
  There is no need, or even any law enforcement benefit, to create a 
special class for crimes based on--and I quote from the amendment--
``the actual or perceived race, color, religion, national origin, 
gender, sexual orientation, gender identity, or disability of the 
victim.'' Indeed, as a matter of justice, this amendment is patently 
offensive. It is based on the premise that violence committed against 
certain kinds of victims is worse and more in need of Federal 
intervention and swift justice than if it were committed against 
someone else. I am sure most parents of a minority, homosexual, or 
female victim would appreciate the extra concern, but that also implies 
that certain crimes are better, for lack of a better word. Where does 
that leave the vast majority of victims' families who, because of the 
whims of political correctness, are not entitled under this amendment 
to special status and attention? How can a victim's perceived status or 
the perpetrator's perceived opinions possibly determine the severity of 
the crime?
  The 14th amendment explicitly guarantees all citizens equal 
protection of the laws. This amendment creates a special class of 
victims whose protection of the laws will be, in Orwell's phrase, more 
equal than others, and if some are more equal, others will be less 
equal; that is, this amendment will create the very problem it purports 
to solve.
  Let's talk about thought crimes for a minute. This amendment will 
also move our Nation a dangerous step closer to another Orwellian 
concept--thought crime. This legislation essentially makes certain 
ideas criminal in that those ideas involved in a crime make that crime 
more deserving of prosecution. The problem, of course, is that 
politicians are claiming the power to decide which thoughts are 
criminal and which are not.
  Canadians right now live under this regime where so-called human 
rights commissions operating outside the law prosecute citizens for 
espousing opinions with which the commissioners disagree. This concern 
is only heightened by the last section of this hate crimes amendment 
which says it does not allow ``prosecution based solely upon an 
individual's expression of . . . religious . . . beliefs.''
  Let me repeat that because we are being told this would not affect 
anyone expressing a religious opinion or value judgment:

       Prosecution based solely upon an individual's expression of 
     religious beliefs . . .

  Two questions come to mind: First, if the hate crimes amendment is 
really just about law enforcement, why should it even need a 
restatement of the self-evident fact that religious expression is 
constitutionally protected? And second, why include the adverb 
``solely'' if not to allow for the potential prosecution of people's 
religious speech so long as it is part of a broader prosecution of the 
accused hater?
  Today, only actions are crimes. If we pass this legislation, opinions 
will become crimes. What is to stop us from following the lead of 
European countries and American college campuses where certain speech 
is criminalized? Can priests, pastors, and rabbis be sure their 
preaching will not be prosecuted? In Canada, for instance, Pastor 
Stephen Boissoin was so prosecuted by Alberta's Human Rights Commission 
for publishing letters critical of homosexuality, a biblical concept. 
Or will this amendment serve as a warning to people not to speak out 
too loudly about their religious views lest the Federal law enforcement 
come knocking at their door? What about the unintended consequences, 
such as pedophiles and sex offenders claiming protected status as 
disabled under this legislation? There is no such thing as a criminal 
thought, only criminal acts. Once we endorse thought crimes, where will 
we draw the line? And more importantly, who will draw the line?
  Let me talk a little bit about equality and how it relates to this 
bill. If my own children were attacked in a violent crime, justice--
true justice--demands that their attackers be pursued no more or less 
than the attackers of any other children.
  We also say we want a colorblind society--even Judge Sotomayor. But 
we cannot have a colorblind society if we continue to write color-
conscious laws. Our culture cannot expect to treat people equally if 
the law, if the ruling class treats citizens not according to the 
content of their character but according to their race, sex, ethnicity, 
or gender identity.
  As we wait through the night to vote on this hate crimes bill, I 
encourage my colleagues, first of all, to set this aside and let's 
focus on it separately, if it needs to be focused on. It is not part of 
the Defense authorization bill. But they are holding the Defense 
authorization bill hostage to other things, much like we did a few 
weeks ago when we were trying to pass a defense appropriations bill and 
they attached a $100 billion giveaway to the International Monetary 
Fund. In order to vote for the support of our troops, we had to vote to 
give away another $100 billion from American taxpayers.
  This hate crimes legislation makes no sense. It violates all the 
principles of equal justice under the law. It makes what we think and 
what we believe a crime, rather than what we do.

[[Page 17975]]

It asks judges and juries to determine what we were thinking when we 
were committing a crime, instead of trying to decide what we really 
did. This is not what is carved above the Supreme Court, which says 
``equal justice under the law.'' It violates all the principles we have 
talked about as far as blind justice, that a judge does not look at who 
is in front of him but considers the facts of the case.
  Hate crimes violate everything that is essentially American and fair 
and equal about a justice system. It makes no sense to bring it up at 
all. It makes even less sense to bring it up under the Defense 
authorization bill.
  I encourage my colleagues, particularly the majority, to withdraw 
this amendment and let us move ahead with the debate of the defense of 
our country.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. VITTER. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                   Highway Investment Protection Act

  Mr. VITTER. Mr. President, in September of this year, just a couple 
of months away, the highway bill--the program under which we build 
bridges and roads and highways around the country--is set to expire. 
Even more worrisome, in August of this year--next month--the highway 
trust fund, which funds all of that activity, is scheduled to run out 
of money. So I think--I hope--there is a broad consensus here that we 
need to act to continue the ongoing highway program. To not act--to 
allow the highway trust fund to run out of money, to allow the highway 
program to end--would be an enormous antistimulus for the economy 
because a lot of significant, productive infrastructure spending and 
activity would just stop overnight.
  So we must act, and I believe everyone acknowledges that. What I am 
concerned about is that we are going to go right up to the eleventh 
hour, to the precipice, and then we are going to be given one choice, 
and one choice only, here on the floor of the Senate, rather than have 
a calm and reasoned debate about the best way to act and the best way 
to pay for that. So I strongly urge the Senate to take up this matter 
sooner rather than later and to consider all of the reasonable and all 
of the available options.
  As I understand it, the Obama administration will propose an 18-month 
extension of the current highway program, and I have absolutely no 
problem with that. I plan to support that. The key issue in my mind is 
how we pay for that extension, how we replenish the trust fund, at 
least for the next 18 months. We faced this shortfall late last year, 
and unfortunately there was no good idea, no option presented except to 
spend more money--borrowed money--and increase the debt to keep that 
trust fund going.
  I suggest that with our debt rising so dramatically, with all of the 
actions this Congress has taken--the stimulus, the budget that doubles 
the debt in 5 years and triples it in 10--we need a better solution 
than merely to print more money or borrow more money from the Chinese. 
That is why I have introduced my proposal, S. 1344. That bill 
specifically is called the Highway Investment Protection Act. It would 
extend and reauthorize the highway program for an initial 18 months, 
and it would fund that out of existing stimulus dollars which have 
already been appropriated.
  Some may ask: What is the point of that? The point is real simple. If 
we use existing, already appropriated stimulus dollars, we are not 
borrowing more money, we are not printing more money, we are not 
borrowing more money from the Chinese, and we are not yet again 
increasing the deficit and increasing the debt. That is very important. 
We are also not increasing taxes, which is a horrible thing to do, 
particularly in the middle of a very serious recession.
  One of the clear lessons from the Great Depression is the things you 
don't do, which, unfortunately, leaders back then did, in some cases. 
One of the things you don't do is to increase taxes, which made the 
Depression far worse and far longer in duration than it otherwise 
needed to be.
  So this program doesn't print more money, it doesn't borrow yet more 
from the Chinese, and it doesn't raise taxes. That is the great 
advantage of it.
  In addition, it is specifically structured to give maximum 
flexibility to the Obama administration in terms of where to find those 
stimulus dollars. So we don't say specifically take it from this 
account, which they may favor; take it from that account, which they 
may prefer. We give the Obama administration maximum flexibility. And I 
think virtually everyone acknowledges that at the end of the day, when 
the entire $800-plus billion stimulus program is worked through, there 
will be over this amount of money that remains unspent and unobligated. 
There will be more than what is required for the next 18 months for the 
highway trust fund--about $20 billion--which cannot be spent out of the 
stimulus anyway. So this is simply capturing that money and using it to 
extend this vital highway program and this important infrastructure 
spending.
  Several months ago, when we debated the stimulus here on the floor of 
the Senate, there were many of us--Democrats and Republicans alike--who 
wanted more infrastructure spending, more highway spending in the 
stimulus. It is very clear from every poll that was published that the 
American people felt that way. One of the absolute top categories of 
stimulus spending money the American people supported was highway 
construction--roads, bridges, highways. So this is very consistent with 
the idea of a broad-based stimulus program. It is not inconsistent with 
that at all.
  Again, the alternatives are to simply move money from the general 
fund. That means we are borrowing more money from the Chinese or 
whomever--in a sense, printing more money--or there may be a proposal 
to increase taxes to pay for it, which I believe, no matter what the 
source, is a very bad idea in the middle of a serious recession. That 
is very antigrowth.
  My fear is that given our very constricted busy schedule between now 
and the August recess, this matter is going to be pushed to the very 
end, right before we are set to leave for the August recess, and there 
will be one alternative and one alternative only: Just print more 
money. Just borrow more from the Chinese. My fear is there is going to 
be an attempt to rush that through the Senate, and I don't think that 
is the way to get the best result and the most consensual result on 
this important issue.
  I propose we think about this now, sooner rather than later. I 
propose we discuss all the reasonable alternatives and certainly look 
at the very commonsense alternative of using already appropriated 
stimulus dollars--again, no new debt, no new spending; use what has 
already been appropriated in the stimulus; give the administration 
maximum flexibility in terms of how to do that.
  Finally, I would also point out that the bill is drafted very 
carefully, so that within these 18 months, if the Congress were to 
enact a new highway reauthorization program, a new multiyear program, 
this extension would automatically dissolve and go away and this money 
from the stimulus would automatically stop and whatever the provisions 
of that new multiyear highway bill would be would come into full force 
and effect. I urge all my colleagues--Democrats and Republicans--to 
consider this commonsense approach.
  In that vein, I would like to propound a unanimous consent request.


                   Unanimous Consent Request--S. 1344

  I ask unanimous consent that the Senate proceed to the immediate 
consideration of S. 1344, a bill to use stimulus funds to protect the 
solvency of the highway trust fund; and I ask unanimous consent that 
the technical amendment at the desk be agreed to; the bill as amended 
be read a third time and passed, the motion to reconsider be laid upon 
the table, and that any statements relating to the bill appear at this 
point in the Record.

[[Page 17976]]

  The PRESIDING OFFICER (Mr. Udall of Colorado). Is there objection?
  Mr. LEVIN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. VITTER. Well, in light of the objection, I would ask the 
distinguished Senator from Michigan, if the Senator would at least 
agree to a unanimous consent request to allow this bill to be the next 
order of business after the current Defense authorization bill is fully 
dealt with which would provide for limited time agreements and relevant 
germane amendments?
  Mr. LEVIN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. VITTER. Mr. President, in closing, let me say that I think it is 
unfortunate we don't take up this serious matter next after the Defense 
authorization bill and that we don't take it up in plenty of time to 
look at all of the reasonable alternatives.
  I hope when we finally take it up, it isn't in a mad dash to the 
August recess; that it isn't under all of the normal artificial 
pressure that is built up where we must act in the next few hours and 
we have one choice and one choice only. We have heard all that before. 
We have heard it before when we were forced into quick consideration of 
the bailouts. We heard it about the stimulus. Now we are hearing it 
about health care.
  Let's try to do some things right and not just quick. This has to be 
done before the August recess because the highway trust fund will run 
out of money during the August recess. So let's take this up sooner 
rather than later.
  Let's take this up right after the current Defense authorization bill 
on the floor is dealt with and look at all the available alternatives, 
including using stimulus funds already appropriated so we don't raise 
taxes in the middle of a recession, so we don't increase the debt and 
so that we don't borrow more money from the Chinese and print more 
dollar bills. The American people are very fearful of that growing 
trend.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Mr. President, I ask unanimous consent to speak as in 
morning business for such time as I might consume.
  The PRESIDING OFFICER. Is there objection?
  Hearing no objection, it is so ordered.


                           Health Care Reform

  Mr. ENZI. Mr. President, many of my colleagues have called me an 
``eternal Optimist.'' Since I entered the Senate more than 12 years 
ago, I have consistently worked across party lines to find new 
solutions and broker bills that then become law. I have a long and 
consistent track record of working in good faith with my colleagues 
from both sides of the aisle. I had hoped, and still hope, to do that 
on the complex issue of health care reform.
  Last Congress, I proposed Ten Steps to Transform Health Care in 
America. I traveled 1,200 miles across my home State last March to 
bring my message of reform directly to the people of Wyoming. My 
message was built on the belief that the American people needed more 
choice and more control over their health care. I put it together by 
working with people on both sides of the aisle. I found a way to get 
coverage for everybody if we did all 10 steps, and any one of them 
would increase access and cut costs.
  Among other things, my plan attempted to level the playing field in 
the tax treatment of health insurance and also provide a helping hand 
to low-income Americans in the form of subsidies to ensure access to 
quality, affordable health insurance. My plan also provided greater 
equity and ease to our Nation's small business owners by allowing 
cross-State pooling. Each of my proposals targeted three fundamental 
goals: Increasing access to health care, reducing costs within our 
health care delivery system, and improving the quality of care.
  As the only accountant in the Senate, I was and remain very concerned 
about the effect of any health reform proposal on our Federal budget, 
as well as personal and family budgets. We all want coverage for 
everyone, including preexisting and chronic conditions. We want 
portability. We want health care, not sick care.
  I have continued my work on health care reform this Congress. As the 
ranking member on the Committee on Health, Education, Labor, and 
Pensions, a member of the Finance Committee, and a member of the Budget 
Committee, I assumed a unique role in the health reform debate this 
year. I worked hard to foster a constructive dialogue with the members 
of all three committees, and I have met with the President and 
administration officials to share ideas on how to best craft a strong 
bipartisan bill. As the debate on health care reform progresses in the 
Senate, I continue to stand ready to work on this critical issue. As I 
have noted many times before, this is likely to be the most important 
piece of legislation that we will work on as Members of the Senate. It 
touches the life of every single American in a very real way.
  Our health care system is approximately one-sixth of our Nation's 
economy, and the changes we make in it will ultimately affect the lives 
of every single American. I have never worked on a bill that was that 
extensive. It is a sacred trust we have, and we must not be moved by 
artificial deadlines and short-term political considerations.
  I do not think a good bill and a bipartisan bill are mutually 
exclusive. To the contrary, I believe a health care reform bill will 
need strong support from both sides of the aisle to gain the 
credibility and the support of our constituents. It is still my hope we 
can produce a strong bipartisan health care bill that upwards of 80 
Members of the Senate could support. I see that as a possibility.
  I remain eternally hopeful we will deliver the American people the 
strong bipartisan health care bill they deserve. But I have to tell you 
I am disappointed by the recent developments of the House of 
Representatives and, more particularly, in the Committee of the Senate 
on Health, Education, Labor and Pensions.
  Yesterday, on a party-line vote, 13 to 10, the committee passed the 
Affordable Health Choices Act. But don't let the name fool you because, 
with a $1 trillion pricetag, the bill is anything but affordable.
  Unfortunately, the HELP Committee chose to gallop down a path of 
partisanship. Despite my strong urging that we start with a blank piece 
of paper, HELP Committee Republicans were presented with roughly 600 
pages of longstanding Democratic policies. It seems not a single 
Democratic member of the committee was told no, as every pet project 
was included in this bill. Because Republicans were shut out of the 
drafting process, we were forced to file hundreds of amendments. 
Unfortunately, of the 45 committee rollcall votes on Republican 
amendments, 2 were successful. There were a number of amendments that 
were accepted, but they fall more in the category of proofreading 
amendments and some slight changes.
  President Obama has repeatedly called for a health care bill that 
will reduce costs. He has called for a bill that will help every 
American get access to quality health care, a bill that allows people 
who like the care they have to keep it, a bill that will not increase 
the deficit. Republicans strongly support those goals. Unfortunately, 
the HELP bill does not meet any of them.
  In my view, and graded on the criteria specified by the President, 
the bill voted out of the HELP Committee fails on all counts. The bill 
breaks the President's promises and falls short on achieving the 
commonsense goals the Republicans and President share. Instead, the 
partisan HELP bill adds $1 trillion to the deficit, despite the 
President's promise that health care reform must and will be deficit 
neutral. The bill increases that deficit by more than $1 trillion over 
10 years. It is not as bad as the House bill. It is my understanding 
that increases it by $4 trillion over 10 years. Maybe it is just more 
honest, because there are ways to avoid a cost by phasing in 
authorizations and by using such sums in authorizations--little tricks 
of budgeting that avoid the score. But this is on the

[[Page 17977]]

heels of news last week from official scorekeepers that the Federal 
budget deficit was $1.1 trillion for the first 9 months of fiscal year 
2009.
  According to scorekeepers, this bill will bend the cost curve the 
wrong way, driving up the cost of health insurance for most Americans 
and increasing total spending on health care.
  I refer people to an article by Lori Montgomery in the Washington 
Post today, ``CBO Chief Criticizes Democrats' Health Reform Measures.''

       Instead of saving the Federal Government from fiscal 
     catastrophe, the health reform measures being drafted by 
     congressional Democrats would worsen an already bleak budget 
     outlook, increasing deficit projections and driving the 
     nation more deeply into debt, the director of the nonpartisan 
     Congressional Budget Office said this morning.
       Under questioning by members of the Senate Budget 
     Committee, CBO director Douglas Elmendorf said bills crafted 
     by House leaders and the Senate health committee do not 
     propose ``the sort of fundamental changes that would be 
     necessary to reduce the trajectory of federal health spending 
     by a significant amount.''
       ``On the contrary,'' Elmendorf said, ``the legislation 
     significantly expands the federal responsibility for health 
     care costs.''
       Though President Obama and Democratic leaders have said 
     repeatedly that reining in the skyrocketing growth in 
     spending on government health programs such as Medicaid and 
     Medicare is their top priority, the reform measures put forth 
     so far would not fulfill their pledge to ``bend the cost 
     curve'' downward, Elmendorf said. Instead, he said, ``The 
     curve is being raised.''
       The CBO is the official arbiter of the costs of 
     legislation, and Elmendorf's stark testimony is certain to 
     undermine support for the measures even as three House panels 
     begin debate and aim to put a bill on the House floor before 
     the August recess. Fiscal conservatives in the House, known 
     as the Blue Dogs, were already threatening to block passage 
     of legislation in the Energy and Commerce Committee, 
     primarily due to concerns about the long-term costs of the 
     House bill.
       Cost is also a major issue in the Senate, where some 
     moderate Democrats have joined Republicans in calling on 
     Obama to drop his demand that both chambers approve a bill 
     before the August recess. While the Senate health committee 
     approved its bill on Wednesday with no Republican votes, 
     members of the Senate Finance Committee were still struggling 
     to craft a bipartisan measure that does more to restrain 
     costs.
       The chairman of the Senate Budget Committee, Kent Conrad 
     (D-ND), has taken a leading role in that effort. This 
     morning, after receiving Elmendorf's testimony on the 
     nation's long-term budget outlook, Conrad turned immediately 
     to questions about the emerging health care measures.
       ``I'm going to really put you on the spot,'' Conrad told 
     Elmendorf. ``From what you have seen from the products of the 
     committees that have reported, do you see a successful effort 
     being mounted to bend the long-term cost curve?''
       Elmendorf responded: ``No, Mr. Chairman.''
       Asked what provisions would be needed to slow the growth in 
     federal health spending, Elmendorf urged lawmakers to end or 
     limit the tax-free treatment of employer-provided health 
     benefits, calling it a federal ``subsidy'' that encourages 
     spending on ever more expensive health packages. Key 
     senators, including Conrad, have been pressing to tax 
     employer-provided benefits, but Senate leaders last week 
     objected, saying the idea does not have enough support among 
     Senate Democrats to win passage.
       Elmendorf also suggested changing the way Medicare 
     reimburses providers to create incentives for reducing costs.
       ``Certain reforms of that sort are included in some of the 
     packages,'' Elmendorf said. ``But the changes that we have 
     looked at so far do not represent the sort of fundamental 
     change, the order of magnitude that would be necessary to 
     offset the direct increase in federal health costs that would 
     result from the insurance coverage proposals.''
       Senate Majority Leader Harry Reid dismissed Elmendorf's 
     push for the benefits tax. ``What he should do is maybe run 
     for Congress,'' Reid said.
       But Senate Finance Chairman Max Baucus expressed 
     frustration that the tax on employer-funded benefits had 
     fallen out of favor, in part because the White House opposes 
     the idea. Critics of the proposal say it would target police 
     and firefighters who receive generous benefits packages. And 
     if the tax is trimmed to apply only to upper income 
     beneficiaries, it would lose its effectiveness as a cost-
     containment measure.
       ``Basically the president is not helping,'' said Baucus. 
     ``He does not want the exclusion, and that's making it 
     difficult.''
       But he added, ``We are clearly going to find ways to bend 
     the cost curve in the right direction, including provisions 
     that will actually lower the rate of increase in health care 
     costs.''
       Ideas under consideration include health-care delivery 
     system reform; health insurance market reform; and empowering 
     an independent agency to set Medicare reimbursement rates, an 
     idea the White House is shopping aggressively on Capitol 
     Hill.
       But Baucus is not giving up on the benefits tax. ``It is 
     not off the table, there's still a lot of interest in it,'' 
     Baucus said.

  I would mention the members of the committee are still working to 
find that bipartisan match, but it does take time. There are so many 
moving parts to this bill. But the partisan HELP bill breaks the 
President's promise, ``if you like what you have, you can keep it.'' 
The scorekeepers report the bill would force millions of Americans to 
lose their health care plan they have and like. Several Republican 
members offered amendments that aimed at ensuring Americans who like 
the coverage they have they can keep it, but they all suffered the same 
failing fate.
  The partisan HELP bill kills jobs and cuts wages. The nonpartisan 
Congressional Budget Office concludes the bill will result in lower 
wages and higher unemployment. These jobs and wage cuts would hit low-
income workers, women, and minorities the hardest. It is hard to 
believe that with unemployment at a generational high, Democrats on the 
committee will even consider putting more jobs on the chopping block.
  Despite passage of the so-called stimulus bill earlier this year, 
Americans are facing the highest unemployment rate in 26 years. At the 
same time, the HELP Committee and the House Democrats are attempting to 
impose new taxes on small employers that will eliminate jobs for low-
income minority workers.
  The partisan HELP bill raises taxes at the worst possible time. 
Despite several amendments offered by Republican members, which the 
Democrats defeated on party-line votes, the bill breaks President 
Obama's promise not to raise taxes on individuals earning less than 
$250,000 per year. The bill would impose a new tax on people without 
health insurance. The partisan HELP bill allows Washington bureaucrats 
to ration health care. The bill lays the groundwork for a government 
takeover of health care, giving Washington bureaucrats the power to 
prevent patients from seeing the doctor they choose and obtaining new 
and innovative medical therapies.
  I could go into the cost effectiveness--the clinical effectiveness 
research, but I will not go into the details of that at this time. But 
that is a way that care could be rationed. How do we know? We tried a 
bunch of amendments that would specify what could not be rationed, and 
every one of those was defeated.
  The partisan HELP bill traps low-income Americans in a second-tier 
health care program. Despite several amendments, the other side refused 
to give Medicaid patients the choice to access higher quality care.
  The other side claims to support giving patients choices but when the 
choice is a new government-run health plan, however, they refuse to 
give low-income Americans the chance to get out of the worst health 
care programs in the country.
  I would mention government-run programs, instead of giving the lowest 
income Americans a choice to enroll in private insurance with 
subsidies, the HELP Committee bill forces them to stay in a program 
where 40 percent of the physicians will refuse to see them and the care 
they receive will be worse than what is available through private 
health insurance.
  I have to remind you, if you cannot see a doctor, you don't have 
health care.
  Instead of reducing health care costs, the partisan bill will spend 
billions of taxpayer dollars on new porkbarrel spending. The bill would 
build new sidewalks, jungle gyms, and farmers markets through a 
mandatory spending $80 billion slush fund. That is just the first 10 
years, which is delayed 2 years; otherwise, it would be $100 billion. 
That is for additional porkbarrel projects.
  Talk about a rating system. A rating system is how much difference 
you have between the low age and the high age, the more well and the 
sicker people. That is being compressed dramatically, which will raise 
the rates for virtually everybody in America.

[[Page 17978]]

  The partisan HELP bill preserves the costly, dangerous, medical 
malpractice system. Again, despite several blocked attempts by multiple 
Republican committee members, the bill fails to reduce medical lawsuits 
which drive up the cost of health care and force doctors to order 
wasteful tests and treatments to cover liabilities.
  The bill worsens doctor shortages. According to an analysis by the 
Department of Health and Human Services, the bill would worsen the 
Nation's primary care physician shortage by providing fewer medical 
students with financial assistance in return for work in underserved 
areas.
  In short, the HELP Committee bill costs too much, covers too few, and 
if you like what you have you can't keep it. Under this bill, if you 
like your job, you may not be able to keep that either. With all these 
bad policies comes a $1 trillion pricetag. That is $1 trillion this 
country cannot afford right now and a trillion reasons why it is a bad 
bill for America. We have not even talked about clinical effectiveness 
or some other programs that were not actuarially sound.
  As I said at the beginning of the speech, I am an eternal optimist. 
Despite my comments on the perils and policies in the HELP bill, we 
still have a chance. We can write a good bill, a bill that ensures 
every American has quality, affordable health care; a bill that is 
fully paid for with savings exclusively from health care; a bill that 
reverses the cost curve; a bill that lets Americans keep what they have 
if they like it; a bill the American people deserve. We are working on 
that now. We are trying to put together that bill, but it takes time.
  Those are all things that can be done. One way to enact real change 
is to sit down and work out the details. Health care is complicated. 
The laws of unintended consequences are severe and unforgiving. We 
cannot rush into something that will change one-sixth of our Nation's 
economy and affect 100 percent of Americans. We must take our time and 
get the policies right.
  I have heard reports of White House staff calling the HELP Committee 
bill a bipartisan bill. I heard White House staff say this bill 
incorporated Republican ideas. White House staff speak for the 
President, not for Senate Republicans.
  I can tell you as the ranking Republican on the HELP Committee, the 
partisan vote speaks for itself. Republican ideas were excluded from 
the process and from this legislation. We have five bills that have 
ideas that would meet the goals of the President and the ones I have 
stated. Parts of those were considered; most were rejected.
  I passionately want to reform our health care system to improve 
quality, reduce costs, and increase access. I think the HELP Committee 
legislation fails to meaningfully address those goals and sticks the 
American people with a bill we cannot afford. I hope we can get back to 
work and construct real reform that has the support of the American 
people.
  I appreciate the openness that Senator Baucus has had in dealing with 
Finance Committee members and am optimistic eternally that something 
good can come out of it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington is recognized.


                           Amendment No. 1511

  Mrs. MURRAY. Mr. President, in every corner of our country, 
communities have been working to end hate crimes. Despite the great 
gains in equality and civil rights throughout the last century, too 
many Americans today are still subjected to discrimination, violence, 
and even death because of who they are. That is why I have joined with 
many of my colleagues as a cosponsor of the Matthew Shepard Hate Crimes 
Prevention Act. This is a commonsense, bipartisan bill that will stand 
up for the victims of hate crimes and their families.
  I am glad it has been offered as an amendment and that we will now 
have a chance to act on it this week. It takes only a quick glance at a 
newspaper to see places around the world where people are regularly 
attacked because of their religion or the color of their skin or their 
sexual orientation. It is important to remember that even though we in 
America have made great strides in reducing discrimination, there is 
still plenty of work to be done. I am proud we are working toward 
ending these crimes once and for all in the memory of Matthew Shepard.
  Matthew, as many of my colleagues have stated, was a 21-year-old 
college student who was murdered because of his sexual orientation. 
That crime was not prosecuted as a hate crime because there was no 
applicable State or Federal hate crimes law that covered sexual 
orientation. Just this year we were all saddened by a horrific shooting 
of a security guard at the Holocaust Museum in Washington, DC, a few 
blocks away.
  But those are only two examples. And not all of these terrible hate 
crimes make headlines. In 2007, the last year for which the FBI has 
statistics, there were over 9,000 hate crime offenses. The thousands of 
people who have been victimized by hate crimes each receive inadequate 
protection under the law, and that is simply unconscionable. That is 
why this amendment we are considering this afternoon is long overdue.
  This amendment would strengthen our existing laws by providing the 
Justice Department with additional tools to investigate and prosecute 
crimes that were committed based on a victim's race, color, national 
origin, religion, sexual orientation, gender identity, or disability.
  Communities across the country have been working to respond to hate 
crimes, and State and local law enforcement continues to bear the 
responsibility for prosecuting the bulk of these crimes. This is not a 
Federal takeover. However, States and localities would greatly benefit 
from the help the Federal Government can provide. If a State or local 
community is unable to prosecute a hate crime, this amendment would 
mean the Federal Government could lend a hand.
  This amendment would provide a number of other tools to help end hate 
crimes. It would provide States and local governments with grants 
designed for hate crime prevention. It would expand data collection 
about hate crimes so that law enforcement will have more information to 
help prevent prejudicial crimes committed against women. It would 
expand the legal definition of what a hate crime is, allowing for 
stronger prosecution and more cases for a violent crime that is clearly 
motivated by hatred.
  In that way, this amendment would put into law what we already know, 
that crimes are different when they are motivated by discrimination. 
Burning down a building is a horrible crime. But that crime takes on a 
new character when that building is a church or a synagogue or a 
mosque.
  It is wrong when one person attacks another person on the street, for 
sure. But it has a different meaning when violence occurs because the 
victim is a different race, or religion, or sexual orientation.
  We cannot stand idly by while Americans are subjected to 
discrimination, violence, and even death, simply because of who they 
are. Passage of this amendment would be another major victory for equal 
rights in our country.
  I come to the floor this afternoon simply to urge our colleagues to 
support this amendment when it comes to a vote later this afternoon.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kansas is recognized.
  Mr. ROBERTS. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                        Medicare Reimbursements

  Mr. ROBERTS. Mr. President, I find myself in a rather unique position 
here. If you look in the bio sections of all of the outfits that keep 
herd on us, they will record me as a journalist. That is an unemployed 
newspaper man, by the way.
  But I have a great family tradition in journalism, three generations, 
four generations, actually, of the Roberts family and the State's 
second oldest newspaper in Kansas. I still carry around my reporter's 
notebook, have

[[Page 17979]]

great respect for those of the fourth estate. We shine the light of 
truth with our own individual flashlight.
  I do not think I have ever done this in 28 years of public service, 
but I am irritated. I am more than irritated. I rise today to clear up 
some recent flagrant mischaracterizations about Medicare payments, 
especially since the Medicare payments are now being used as a target 
as a pay-for for the health care reform, the alleged health care reform 
that Senator Enzi was talking about, specifically the statements made 
on the front page of today's Washington Post, the fountain of all 
knowledge here in Washington, in an article entitled ``Obama Eyes the 
Purse Strings for Medicare.''
  I would describe this article--I read it. I read it again. I was a 
relatively happy person, watching the weather--I do not watch the news 
much--had my cup of coffee, was going to turn to the sports pages. Then 
I happened to glance at this, read it, and ruined my whole morning. I 
came in, I was mean with the staff and everything else. So I thought I 
better get it off my chest.
  This article is patronizing. It is condescending. The bad part about 
it is it is egregious in nature and effect at a crucial time in the 
health care debate, and that is most unfortunate.
  The author of this article describes what she sees as ``one of the 
most effective and lucrative forms of constituent service,'' i.e. 
setting reimbursement rates for local hospitals, doctors, home health 
care centers, and other health care providers.
  Oh, I wish I had that power, as opposed to CMS, which is the 
subagency, the acronym agency for the Department of Health and Human 
Services, that does set reimbursement rates for all health care 
providers in the United States.
  The author continues, accusing ``longtime Members of Congress'' of 
such atrocities as ``championing New York City's teaching hospitals'' 
and making sure ``rural health services are amply funded.'' In this 
author's mind, these hospitals and other providers are ``flush.'' Flush 
with Medicare cash as a result.
  I must admit in my 28 years in Congress, I have absolutely been one 
of those dastardly Members intent on making darn sure that the rural 
health care delivery system can remain alive and serve our people, even 
if it has to be kept on life support, which is the true 
characterization of what we face.
  I wonder, since it never appears anywhere in the person's article, in 
her article, if the author of this piece is aware that the average 
Medicare reimbursement rate for doctors is about 80 percent of what the 
commercial market pays or that Medicare only pays about 70 percent of 
the market rates for hospitals. That is why we have hospital after 
hospital after hospital for decades in Kansas passing bond issues just 
to keep their doors open. These are not flush places. These are not 
posh places in regard to hospitals.
  Then I go back to the fact that doctors get paid 80 percent. That is 
why doctors, many of them, are refusing to take--in regard to 
Medicare--patients. And that is that terrible word that people say is 
too scary, that is called rationing, that when we set a reimbursement 
rate, we, meaning the CMS--no, not individual Members of Congress, as 
the article infers--but these agencies cannot reimburse doctors enough 
so they can make a living, or other health care providers, that they 
cease providing Medicare to seniors.
  What does the senior do then? Well, they are in a very difficult 
situation. How do you think these providers survive? The answer is that 
they shift that loss onto the private market to the tune of nearly $90 
billion a year.
  Let me repeat that. Everybody who goes to the hospital, everybody who 
goes to a doctor and has private insurance, you are paying $90 billion 
a year in a hidden tax in regard to the people who basically are not 
covered by Medicare and by Medicaid, if, in fact, you would do what the 
President has suggested, and maybe take some money--``eyes the purse 
strings for Medicare,'' Medicare being a target, Medicare being the 
service for seniors. Wake up, seniors. Wake up, AARP. Wake up, everyone 
else in the health care field. We are targeting Medicare.
  My word, if any Senator had come down here except during these last 6 
months and said: Let's cut Medicare by 10 percent, they would have been 
excoriated by this newspaper for hurting senior citizens.
  Well, in my State of Kansas and in other rural States across the 
country, we do not have a private market to shift those losses to. Our 
rural areas do not have the population base to support such a cost 
shift as $90 billion as happens in the rest of the country. In 
addition, the folks in these towns are much more likely to depend on 
Medicare or Medicaid or to simply be uninsured. In short, without some 
sort of special payment from Medicare, these hospitals would not 
survive.
  You tell me, Washington Post, what you would say to the residents of 
Smith Center here, top center in Kansas. What would you say to the 
residents of Smith Center if their hospital closed?
  Smith Center is a great town, close to the geographic center of the 
lower 48 States, has a population of a little less than 2,000 people. 
They have a great football team, high school football program, Smith 
Center Redmen, the pride of north central Kansas, one of the greatest 
small town football teams in America.
  The town is served by the Smith County Memorial Hospital, a critical 
access hospital with 25 beds. For those of you who are unfamiliar with 
the terminology, a critical access hospital is a rural hospital with 25 
beds or less which is at least 35 miles away from another hospital and 
which provides 24-hour emergency services.
  Critical access hospitals get special treatment under Medicare. They 
get paid 101 percent of their costs for inpatient, outpatient, and 
swing-bed services. I probably should not mention that or this reporter 
might run out to Smith Center and say: My goodness, you are getting 101 
percent. Sure. She should go out and take a look, and talk to the 
hospital administrator and the people in that hospital.
  In other words, they do not get the usual 70 percent of the market 
rate reimbursement for Medicare, for a very good reason, because of the 
distances they would have to travel. Without the critical access 
hospital program, the closest hospital for the residents of Smith 
Center would be all the way in Hays, KS, America, right down here 90 
miles away. You tell me what a person's chances of survival are after a 
car accident or a tractor accident if they have to be driven 90 miles 
away for emergency care.
  Smith County Memorial is just one of 83 critical access hospitals in 
Kansas. They are absolutely essential to the very lives of the people 
in rural America. Indeed, they are essential to the very existence of 
rural America at all.
  I have the privilege of being the cochairman of the Rural Health Care 
Caucus, along with Tom Harkin of Iowa. We are fighting tooth and nail, 
holding on by our fingernails to exist, to provide care to the people 
who live in these small communities.
  I am happy to admit it, I am happy to admit to this reporter--I hope 
she comes in for a cup of coffee. I would be happy to give her a cup of 
coffee, no cream or sugar; there might be a little vinegar in it. But 
at any rate, please come in for a cup of coffee and visit about this. I 
am happy to admit it. I will bend over backward to preserve the payment 
rates that allow these hospitals to stay open and to continue to serve 
the people in Smith Center, KS, and elsewhere all throughout rural 
America.
  I believe this position is completely justified. I sleep just fine at 
night knowing that I have used my so-called influence through 
legislation, through the rural health care coalition, through the 
Finance Committee, through the HELP Committee, to ensure that Medicare 
pays these hospitals just enough to average a 1-percent Medicare 
margin, 1 percent, when these hospitals are still fighting for their 
lives.
  I would like to personally invite the author of this article or any 
other member of the Washington Post editorial board, God love them, to 
visit

[[Page 17980]]

some of the rural hospitals in Kansas with me. The reporter's name--I 
hope I get it right; I apologize if I do not. I really sort of 
apologize. I am picking on her--is Shailagh Murray.
  Shailagh, why don't you come to Kansas with me and let us go out to 
Smith Center. Here is the hospital. This is this posh resort that you 
apparently think we finance with Medicare.
  It is true, you know, you go through the doors, there are two-inch 
thick carpets, you go in, there is--let's see, I think there is 
Mozart's piano concert 21, piano concert No. 21, and they call you by 
your first name, and you get immediate treatment. Then there are 
massage facilities and a spa in the back. And that is a lot of what we 
have in our Dodge City feedlots. That is not the case.
  Talk to the CEOs, the doctors, the nurses, and the patients. Walk 
around this small hospital and see the equipment and the facilities. 
Flush with the Medicare cash? Come on. And flush with Medicare cash 
that is somehow influenced by individual Members of Congress? I wish. I 
have been fussing and fighting and feuding and pleading and cajoling 
with CMS to try at least to get these payments to doctors and hospitals 
up to the level that they can continue to exist.
  Flush with Medicare cash? I think not.
  Look at this hospital. Do you see anything that would lead to a 
description of this sort? I am not too sure anybody is going to give up 
their vacation. They have the finest people in the world. That is our 
best commodity in rural areas. I am not picking on Smith Center. They 
are doing a fantastic job with the resources they have. But it just 
makes me very angry that a Washington, DC, paper and reporter would 
demonize a program that keeps rural America's heart beating. It is a 
patronizing and dead-wrong description, and it offends me and the 
people I am privileged to represent in rural Kansas.
  I want to tell Shailagh, Ms. Murray, I am never going to stop 
fighting for these hospitals no matter how many deals the American 
Hospital Association cuts with the White House, no matter how many ugly 
articles are written here in DC. I am rather amazed at the deal the 
American Hospital Association allegedly cut--$155 billion in cuts to 
Medicare for senior citizens. Wake up; it is your Medicare. There is 
going to be more rationing when doctors say: I am sorry, I just can't 
afford to continue.
  That is the target now on the Finance Committee--Medicare. I never 
thought I would see the day that would happen. But I will not stop 
fighting for these hospitals. Here we have the American Hospital 
Association, the Kansas Hospital Association, the Missouri Hospital 
Association, other hospital associations are not happy with the 
national association when you crawl in bed and get fleas with the 
administration. What is the old saying? If you go to bed with the 
Federal Government, you wake up in the morning and you got something 
more than a good night's sleep. And that is exactly what has happened 
with the American Hospital Association.
  They come through my door and say: Help, help, please get these 
reimbursement rates up. Every year, we have done that with Medicare and 
the Medicare Programs. We are being cut by 11 percent, and the cost of 
inflation in regard to where we try to practice has gone up 7 percent, 
and whatever other number they said every year. They blame Republicans. 
Once in a while, they blame Democrats and say: Why on Earth did you cut 
Medicare? And now we are using Medicare as a target for health care 
reform for this bill that is impossible for most people to even 
comprehend? It is amazing.
  The American Hospital Association bought into it with $155 billion in 
cuts. They come through my door every year when they want to keep the 
reimbursement rates level. Don't come through my door for at least a 
month until I calm down. That is my duty to the people of my State. I 
feel comfortable with that.
  I have been a little tough here on a reporter I have never met, 
obviously. She is spending a lot of her time in the people's house 
talking with mucky-mucks on the various committees. Those are people 
with the seniority. I used to be one of those. I used to be somebody. 
But I urge her to talk to Members who represent rural areas and the 
rural health care delivery system and understand that this is not a 
question of this hospital having flush payments. They are hanging by 
their fingernails just to keep open. It is not true that Members of 
Congress, even the distinguished Presiding Officer and anybody else who 
might happen to be listening to my remarks, the great Senator Thune 
standing to my rear who also represents rural areas and has even a 
sparser area than I do--it is just not true. This article comes right 
at the apex of the debate of the health care reform debate. It is just 
not right.
  Let me again say to Shailagh: Why don't you come out to Kansas with 
me. We will visit with Tom Bell, president of the Kansas Hospital 
Association. We can go out to Smith Center and visit the hospital or as 
many hospitals as you want. We will see who is flush in regard to 
Medicare payments. That is certainly not the case with them.
  I think I have made my point. I must say, as a former journalist, 
former newspaperman, I used to check my facts. I would ask that they do 
the same.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. THUNE. Mr. President, the Senator from Kansas made some excellent 
points about rural America and rural hospitals, and, as always, he did 
it in a most effective way. It should not be lost on anyone in this 
Chamber or around the country, when we talk about health care reform, 
these decisions we make in Washington have real impacts in the real 
world. They impact people in different parts of the country 
differently.
  The Senator from Kansas was very clear about the hospitals he 
represents. I represent hospitals in rural areas. These are not 
hospitals out there cutting a fat hog. These are hospitals trying to 
provide service, trying to deliver health care in areas that make it 
challenging because of geography. Sometimes they don't have the most 
up-to-date, modern equipment, but they are out there providing critical 
health care services to people. I associate myself with the comments of 
the Senator from Kansas.
  Anybody who cares about the impact of some of these proposals on 
hospitals in rural areas such as Kansas and South Dakota should be 
concerned about the CBO discussion that occurred this morning in front 
of the Budget Committee. It made it very clear that not only is this 
going to cost $1 trillion, probably minimum, in the near term, but in 
the long term, the costs for the health care reform plan currently 
moving through the Congress explode. When we get into the outyears, it 
will be even more expensive. It will mean bigger and bigger reductions 
and cuts from providers, as the Senator from Kansas so eloquently 
pointed out, in rural areas that are already struggling to make ends 
meet and keep their hospital doors open.
  This report we got today from the Congressional Budget Office is 
really pretty stunning, in the context of the debate we are having over 
health care reform.
  The CBO Director, Doug Elmendorf, was asked pointblank by Senator 
Conrad whether the cost curve is bent under the health care reform 
legislation currently being considered. Elmendorf says no. Then he goes 
on to say:

       The way I would put it is that the curve is being raised.

  As has been pointed out by President Obama before, he said:

       And I've said very clearly: If any bill arrives from 
     Congress that is not controlling costs, that's not a bill I 
     can support.

  That was the President's own criteria for health care reform. That 
only means, based upon the report we got from CBO this morning, that 
the administration is going to have a very difficult time embracing the 
health care plan moving through the Senate that sees costs not coming 
down, not bending the cost curve in a downward

[[Page 17981]]

direction but, rather, bending it upward so we will see a spike in 
health care costs.
  Mr. Elmendorf, when he answered that request, to put it in fuller 
context, was asked: So the cost curve, in your judgment, is being bent, 
but it is being bent in the wrong way; is that correct? His answer is a 
long quote, but I want to get it into the Record because it puts into 
context the very issue he raises with regard to health care reform and 
its costs and when we will see the true effect. Here is what he said:

       The way I would put it is that the curve is being raised . 
     . . As we wrote in our letter to you and Senator Gregg, the 
     creation of new subsidies for health insurance, which is a 
     critical part of expanding health insurance coverage, in our 
     judgment, would by itself increase the federal responsibility 
     for health care that raises federal spending on health care, 
     raises the amount of activity that is growing at this 
     unsustainable rate, and to offset that there would have to be 
     very substantial reductions in other parts of the federal 
     commitment to health care, either on the tax revenue side 
     through changes in the tax exclusion, or on the spending side 
     through reforms in Medicare and Medicaid. Certainly reforms 
     of that sort that are included in some of the packages, and 
     we are still analyzing the reforms in the House package, the 
     legislation was only released as you know about two days ago, 
     but the changes that we have looked at so far do not 
     represent the sort of fundamental change, the order of 
     magnitude that would be necessary to offset the direct 
     increase in federal health costs from the insurance coverage 
     proposals.

  What I conclude from having read that and having heard what he said 
this morning is that he is very skeptical that there is anything about 
the health care plan that is pending in the Senate or the one that 
passed the House last week that is going to, in the long term, reduce 
cost.
  A fundamental principle behind health care reform ought to include 
efficiency, streamlining, finding savings. When most Americans think of 
reform, they don't think of adding costs or making things more 
expensive, they think: How does this reform actually achieve savings by 
making us more efficient and streamlining operations and coming up with 
new and innovative ways of doing things so that we can do things less 
expensively?
  That, to me, would be the essence of reform. That is not what is 
being talked about here, obviously. Not only do the reforms that have 
been proposed, the House version, which has been reported out of the 
committee, or at least is being deliberated on in committee over there 
but hasn't been reported already but will be on the House floor in the 
very near future, a House Democrat aide--this is a news report--said 
the total bill would add up to about $1.5 trillion over 10 years. The 
aide spoke on condition of anonymity to discuss the private 
calculations. You might have a hard time getting used to the concept, 
but it is $1.5 trillion in the House-passed version. We know the 
Senate-passed version will be a minimum of $1 trillion. There are many 
independent analyses and estimates that have been done that suggest 
that it could be north of $2 trillion and perhaps well north of $2 
trillion when a lot of these changes actually go fully into effect 
after the transitional period is over. So we are talking about 
trillions of dollars at a minimum in the near term, perhaps multiples 
of that, trillions of dollars in the long term.
  That doesn't meet any sort of criteria or definition of reform. To 
me, reform ought to be: Let's find some savings. Let's see what we can 
do to achieve some efficiency.
  As I have suggested, we spend already about $2.5 trillion annually on 
health care. That represents about 17 percent of our gross domestic 
product. That is on its way to 20 percent. Very soon, $1 in $5 in our 
entire economy will be spent on health care. I argue that it is not 
that we are not spending enough money on health care. It is that we are 
not spending wisely and well. We are not spending smart. We need to 
spend smarter when it comes to health care. We need to put more of an 
emphasis on wellness and prevention. We need to do things that would 
allow individuals and small businesses to join larger groups, to get 
the benefit of group purchasing power so they can start buying in 
volume, driving down cost to create more competition in the marketplace 
where individuals can buy insurance across State lines. We need to 
address the growing cost of defensive medicine that is a direct result 
of lawsuit abuse. There are a lot of remedies that we think make sense 
in terms of bending the cost curve down and actually doing something to 
reform health care, to gain efficiencies, and to get costs on a more 
reasonable and affordable level.
  It is pretty clear from the CBO report this morning in front of the 
Budget Committee that the current proposal--the House proposal and now 
the Senate proposal reported out of the HELP Committee yesterday--does 
nothing of the sort. There is no way it can be argued that these are 
reforms. It is certainly not reform that leads to savings in the long 
term. They will bend the cost curve upward. We will see increased 
costs. We will see costs spike in the outyears. That came across 
unequivocally in the report that was made by CBO Director Douglas 
Elmendorf this morning in front of the Budget Committee.
  Where does that leave us? I argue that it certainly ought to sound a 
note of caution to people in Washington, DC, that perhaps this is 
something we ought to take our time with. Clearly, what has been 
proposed so far is going to increase costs significantly. It is going 
to lead to the takeover of the health care system by the Federal 
Government, which I think most Americans would take issue with. If you 
don't believe that, again, there are lots of great independent studies 
out there.
  One of the criteria the President put forward in a health care bill 
he would sign had to do with, if you have insurance today that you 
like, you can keep it. That is not true under this bill, either, 
because these independent analyses that have been done have also 
pointed out that there were going to be about 6 in 10 Americans or 
about 118 million total Americans who will be driven into the 
government-run program because the private health insurance 
marketplace, when it has to compete with the government, will not be 
able to do so because the government, due to its very size, is going to 
drive a lot of the private insurance coverage out of the marketplace.
  A lot of small businesses that currently offer insurance to their 
employees are going to say: I am not going to do this anymore. It costs 
too much. And they are going to shift everybody into this big 
government-run program, which not only, I guess, do I have issue with 
the whole notion that we would hand the keys to one-sixth of our entire 
economy to the Federal Government, but I think, more importantly than 
that, it gets to the very basic issue that most Americans instinctively 
agree with, and that is they ought to have freedom, they ought to have 
the choice to choose their health care provider, and they ought to make 
decisions in consultation with their physicians about what is the best 
procedure to use.
  The problem with the approach the Democrats on the HELP Committee 
have taken--and, incidentally, when it passed yesterday, it was on a 
partisan-line vote. All the amendments that were offered by Republicans 
to try to change it or make it better or improve it or at least have 
some of their policy ideas incorporated were shot down on a party-line 
vote.
  But it seems to me, at least, that if we are going to do something 
about health care, we should not hand the entire health care system in 
this country to the Federal Government and have them imposing 
themselves and them making the decisions that historically have been 
made by individuals, by consumers, by patients, and their health care 
providers. That is a fundamental principle of our American tradition; 
that is, that we believe in freedom.
  The European model and the Canadian model on health care, which is 
often used and touted, is a different one. But that is not the American 
way. That has never been the American way. The American way is freedom; 
it is choice; it is individual responsibility, all of which should be 
emphasized in any health care reforms we pass; I might add again, all 
of which ought to lead not to higher costs but to lower costs in our 
health care system.

[[Page 17982]]

  For the record, as well, there are a number of organizations that 
have looked very closely at the House bill and are now analyzing the 
Senate HELP Committee-passed bill and have concluded it is a bad idea. 
It is not just a bad idea for the taxpayers who are going to be stuck 
with the higher taxes or the increased borrowing from future 
generations to finance it, it is not just a bad idea because it puts 
the government in the way and fundamentally interjects it into the 
relationship between patients and their health care providers but also 
because it would kill jobs in our economy.
  We have an economy that is very fragile, that is struggling. We have 
unemployment at 9.5 percent. Perhaps it is going to double-digit levels 
for the first time in a long time in our country.
  So you have the Chamber of Commerce, the National Federation of 
Independent Business, and the Business Roundtable that have sent a 
letter. This letter came out, I think, yesterday. It was in response to 
the House health care reform legislation. But it objects to a number of 
provisions in the bill.
  Specifically, the letter warns that the pay-or-play provision could 
end up killing many jobs. The new Federal health board ``would have 
significant power but be highly unaccountable to the American people.'' 
Then it goes on to say that cost shifting created by the government-run 
plan ``would significantly increase costs for every American who 
purchases private insurance.''
  So the major organizations that represent the job creators in this 
country--the Chamber of Commerce, the National Federation of 
Independent Business, the Business Roundtable; a number of other 
organizations, I would add to that, I think are issuing similar type 
statements and letters--have concluded it would kill jobs, it would 
reduce the accountability we would have with the American people, and, 
finally, it would significantly increase costs to Americans who have to 
purchase insurance.
  So I guess the bottom line in all this is, there is sort of a big 
rush to get this done. The theory is, we have to get this done before 
the August recess. The House is supposed to have this bill marked up 
next week and on the floor, perhaps, the following week. And the Senate 
is trying to figure out a way to wedge this into all the things we have 
to do. We have the Defense authorization bill on the floor this week 
and next. We have the Sotomayor nomination that will have to come 
before the Senate at some point before the August break. But there is 
somehow this belief around here that we have to jam through this health 
care bill because if we do not seize the moment and do it now, we are 
not going to get it done.
  Well, I would argue we ought to get it done right rather than do it 
fast and do it in haste. The Hippocratic Oath for physicians is: ``Do 
no harm.'' That ought to be the oath we, as Members of Congress, take 
with regard to this health care debate. From everything I have seen and 
read from the experts, from the professionals, from the Congressional 
Budget Office, who have analyzed the health care bills--both the one 
that is going to be debated in the House and the Senate committee-
passed version--all the analysis that has been done suggests it would 
do great harm, great harm to the taxpayers who are going to be footing 
that $1 trillion or $2 trillion bill; great harm to the economy, where 
it will cost us jobs; and great harm, I believe as well, to the 
American consumer, the health care consumer, who is going to have to 
pay the cost of this in the form of higher premiums and who will also 
deal with what could be rationed health care; that is, fewer choices, 
fewer options because the government is going to be deciding which 
procedures are covered and which are not.
  So we need to take our time. We need to do this right. There are lots 
of things, as I mentioned earlier, that I think actually do reform the 
health care system in the country, do lower costs, and make it more 
affordable to more Americans, and those ought to be what we focus on.
  But as was reported this morning by the CBO, a program that will bend 
the cost curve upward--not just from the trillion dollars we all know 
it is going to cost in the near term but perhaps trillions of dollars 
in the long term--is a bad direction to go for health care in this 
country, it is a bad direction to go for our economy, and it is a bad 
direction to go for the American taxpayer.
  I yield the floor.
  The PRESIDING OFFICER (Mrs. Shaheen). The Senator from Kansas.
  Mr. BROWNBACK. Madam President, I certainly concur with the statement 
of my colleague from South Dakota as to what he is saying about the 
health insurance issue and the need to do it right rather than fast. I 
think it is critically important.
  I would like to bring to the body's attention something that was on 
the front page of the Washington Post today. It is an article about 
``Who Will Succeed Kim Jong Il?'' and the point being: Here is a 
country that has recently tested missiles that can reach Hawaii, that 
has recently tested a nuclear device. He is gravely ill. Some are 
reporting he has pancreatic cancer. We don't know for sure what he has. 
But the question is, Who will succeed Kim Jong Il? And what does that 
mean to the United States? And what are we doing about it?
  In our office, we are working on a piece of legislation to try to 
start some planning on our part as to what we should be doing if the 
leader in North Korea falls and if the state fails in North Korea, 
which is a very real possibility: that the overall state apparatus in 
North Korea will fail, that you will have hundreds of thousands, 
possibly millions, of people seeking to flee that country or--in a grip 
of searching for food--moving around to try to find food, that nuclear 
weapons will not be well watched, and the missile capacity that is 
there--all in a state that is failing and may fall altogether.
  The reason I point this out is, we are on the Defense authorization 
bill. It is a very important piece of legislation. It is a key piece of 
legislation. It is a piece of legislation we pass every year because it 
is so important to the future of this country and so important to the 
defense of this country.
  Here is a moment where we are looking at a potential nuclear threat, 
missile threat, to the United States and we ought to take up this issue 
and we ought to deal with the Defense authorization bill and, instead, 
we are on hate crimes legislation. The majority party has 60 votes to 
be able to move to that on another piece of legislation and should if 
they want to bring that up. But why here? And why are we eating up a 
couple days to do this on this bill, when we have these sorts of 
threats staring us right in the face?
  I am going to put forward an amendment on the Defense authorization 
bill asking that we relist North Korea as a terrorist country. I think 
we ought to look at going at their financial instruments. I think we 
clearly need to be planning for the failure of this state, and we ought 
to be looking, as a humanitarian issue, at the failure of this state. I 
think we ought to be looking, as a security issue, at the failure of 
this state.
  If North Korea falls, are we rushing in to try to secure the nuclear 
sites? Is South Korea? Is China? Is everybody in some sort of agreement 
as to what takes place to secure these nuclear sites?
  What are we doing on humanitarian issues for 20 million people, many 
of whom will be starving during that period of time--where a number of 
them are starving now in North Korea?
  This is a very present and pressing issue and instead we are on hate 
crimes legislation.
  As a nation, we will not tolerate violent crime, and I am appalled by 
news stories of individuals being assaulted or even killed because of 
their ethnicity, their beliefs, who they are. I am appalled by violence 
done to those who choose any sort of lifestyle they may choose. I 
believe we must send a strong message through our law enforcement and 
judicial system that such attacks would bring the full force of law 
upon those who commit such terrible acts.
  I do appreciate the good will and sincerity of those who wish to 
expand hate crimes legislation. However, I do not believe such 
legislation in this

[[Page 17983]]

body from the Federal Government is the answer. I do not think that is 
something we should be doing on a Department of Defense authorization 
bill when we are facing such key strategic threats internationally and 
we have forces in the field in Iraq and in Afghanistan today. This is 
not the place. This is not the time.
  First, I believe that the severity of a crime should be based upon 
actions committed. If a violent crime is committed, then the 
perpetrator should be prosecuted to the fullest extent of the law. 
Every violent crime ought to be treated as severe, regardless of why it 
was committed. Every life has value, and every murder is an egregious 
crime.
  Our law enforcement and judicial system should be focused on holding 
individuals accountable for what they do, not what they think, feel or 
believe. During the passage of the Statute for Establishing Religious 
Freedom in 1785, James Madison expressed, ``extinguished for ever the 
ambitious hope of making laws for the human mind.'' He clearly opposed 
any law that punished the thoughts or motives of people. Laws already 
exist to punish crimes themselves.
  The Matthew Shepard, hate crimes bill authorizes the prosecution of a 
crime motivated by actually or perceived race, color, religion national 
origin, sexual orientation, gender identity, or disability of the 
victim. This is another example in which a thought or belief becomes an 
element of prosecuting crime.
  Second, I oppose this bill because I believe it would usurp the power 
and jurisdiction of the States. It violates constitutional federalism 
by asserting Federal law enforcement power to police local conduct over 
which the Constitution has reserved sole authority to the 50 States. No 
matter how upset Americans and politicians might be about certain 
criminal behavior, every criminal offense and every authorization of 
criminal enforcement power should be restricted by the explicit 
principles of the Constitution as well as our long-established criminal 
law precedents.
  Currently, 45 States, as well as the District of Columbia, have hate 
crime laws. Many of these State laws carry heavier penalties than those 
proposed in this hate crimes bill. During the Judiciary Committee's 
hearing on hate crimes, Secretary Holder was asked to prove that there 
is evidence that hate crimes cases are not receiving proper prosecution 
and sentencing at the State level. He was unable to produce any.
  Even members of the U.S. Commission on Civil Rights, the commission 
of the U.S. Federal Government charged with the responsibility for 
investigating, reporting on, and making recommendations concerning 
civil rights issues that face the Nation, oppose this bill. Their 
concern is that this law will allow Federal officials to reprosecute 
defendants who have already been acquitted by State juries.
  Third, all crime victims deserve equal protection under the law. This 
is granted to them under the 14th amendment. Hate crime laws create a 
multilevel system of justice in which some crime victims' cases are 
prosecuted more severely than others.
  Recently during the hate crimes debate in the House of 
Representatives, amendments to add military personnel, pregnant women, 
the elderly, and the homeless to the list of protected classes were all 
defeated. It is wrong to attempt to set up the law to favor one class 
of Americans over another.
  Fourth, during the Judiciary hearing on hate crimes, Michael 
Lieberman of the Anti-Defamation League, when referring to hate crimes, 
said that ``these are selective prosecutions.'' We have also heard a 
lot of talk about wanting the Federal Government to send a message 
about the severity of hate crimes. I cannot endorse the idea that 
criminal law should be selective or be used to send a message. Its 
purpose is to prosecute criminal action, not to make selective 
statements.
  Finally, I oppose this bill because I am concerned that it could be 
used to prosecute against religious leaders and organizations for 
speaking out against acts they find morally unacceptable. Hate crime 
laws have already been used in foreign countries to silence people of 
faith who speak their opinion on homosexuality that is derived from 
their faith.
  The other side continues to insist that this bill does not prosecute 
speech, only criminal actions. Yet there is great concern within 
religious communities that the Federal Government could prosecute their 
leaders and members criminally based on their speech or other protected 
activity. This is a chilling threat to the first amendment right to 
free speech for people of faith and freedom of religion. I urge my 
colleagues to vote against this amendment.
  I wish to point out and say to my colleagues, particularly the 
chairman who is on the floor, my hope is, once we get past hate crimes, 
we will remain on the Department of Defense authorization and take up 
the issue of North Korea. I know some may say: Well, that is not 
germane to the Department of Defense bill. I think it is a lot closer 
than what we are on right now. I would hope we would bring up this 
issue because of the clear and present problems we are facing on this 
issue.
  I know the chairman of this committee knows this issue very well. I 
have worked with him on this issue previously. So we have now a 
bipartisan bill to relist them as a terrorist country that we are 
bringing forward. I met with our nominee to be Ambassador to China 
today, saying we should begin planning with the Chinese Government 
today for the failure of the North Korea state taking place in this 
successionist order.
  The North Koreans are acting peculiarly, even by North Korean 
standards, with all the missiles they have launched, the nuclear 
weapons they have put in play, the things they have stated lately. They 
are normally provocative, but this is an all-out scale of provocation 
that is taking place now.
  It would be my hope we could bring this up and at least start to 
address what clearly is opening to be a major problem. Whether the 
Obama administration wants to address it now or the Senate wants to 
address it now, we may not have a choice. If he is facing pancreatic 
cancer and there is a successionist battle taking place in a nuclear-
armed missile country of North Korea and us having 25,000, 27,000 
troops just south in South Korea, we may not have a choice. We need to 
get this addressed. So I would hope the chairman of the committee could 
take this up at that proper time.
  I appreciate this chance and to be able to put this statement into 
the Record. I think it is prudent for us to start to address some 
things that are right on and in front of us rather than this hate 
crimes legislation that does not apply to the Department of Defense 
bill.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, first of all, while my good friend from 
Kansas is on the floor, let me say, we look forward to seeing the 
language he is going to be offering on North Korea. His description of 
North Korea as a threat is an accurate description. I do not know that 
the terrorist state list fits them, but surely the threatening state 
list fits them very directly. We look forward to seeing that language 
and trying to work with him and his colleagues on that amendment.
  Nobody should be targeted because of the color of their skin, their 
religion, their disability, their gender or their sexual orientation. 
For years now, I have joined many colleagues, with the leadership of 
Senator Kennedy, in supporting passage of the Matthew Shepard Local Law 
Enforcement Hate Crimes Prevention Act.
  We have seen hate crimes increase in this country, most recently at 
the Holocaust Museum here in Washington. According to the FBI, between 
1998 and 2007, more than 77,000 hate crimes incidents were reported. 
The legislation we are offering that the majority leader has introduced 
will help prevent and deter these crimes.
  This language, the Matthew Shepard bill, passed the Senate with 
bipartisan support as an amendment to the Defense authorization bill in 
September

[[Page 17984]]

of 2007. This is not new. This language is offered on this bill. 
Cloture was invoked then by a vote of 60 to 39. The hate crimes 
amendment before us will, for the first time, give the Justice 
Department jurisdiction over crimes of violence which are committed not 
only because of a person's race, color, religion, and national origin, 
which we already have on the books, but also based on gender, sexual 
orientation, or disability.
  There have been some statements made about restraints on speech. The 
language is very clear it only applies to violent acts, and it 
emphasizes explicitly in this amendment that it puts no limits or 
restraints on constitutionally protected speech, expressive conduct, or 
activities, including but not limited to the exercise of religion, 
which is protected by the first amendment, or peaceful activities such 
as picketing or demonstrations. The law we are proposing will continue 
to punish violent acts only, not beliefs. It is crucial that we 
understand this legislation only applies to violent, bias-motivated 
crimes and does not infringe on any conduct protected by the first 
amendment.
  The first amendment right to organize, to preach against, or speak 
against any way of life, or any person, is left intact with this 
legislation.
  Again, we are not starting from scratch. The law already prohibits 
violent crimes based on race, color, national origin, or religion. This 
amendment would add disability, sexual orientation, gender, and gender 
identity.
  The amendment ensures that State and local law enforcement will 
retain primary jurisdiction over investigations and prosecutions. The 
amendment has a strong certification provision that authorizes the 
Federal Government to step in only when needed. Prior to indicting a 
person, the Justice Department must certify that the State in which the 
hate crime occurred either does not have the jurisdiction, the State 
has asked the Federal Government to assume jurisdiction, or that a 
State prosecution has failed to vindicate the Federal interest against 
hate-motivated violence, or a Federal prosecution is necessary to 
secure substantial justice.
  Now, why this bill? Why on this bill? First, it is common practice in 
the Senate to offer to bills, although the amendment is of a different 
subject. In other words, this is not the first. For 200-plus years, 
amendments have been offered to bills which are not relevant to the 
bill before us. That is the Senate. It occurs dozens of times every 
session.
  There are not many subjects that are more important than the subject 
of hate crimes. This bill is an available vehicle for an important 
subject. We have done this before on this bill.
  One other thing that I feel keenly about as chairman of the Armed 
Services Committee, this bill embodies values of diversity and freedom 
that our men and women in uniform fight to defend.
  As Senator Kennedy said in 2007 when we debated this legislation:

       We want to be able to have a value system that is worthy 
     for our brave men and women to defend. They are fighting 
     overseas for our values. One of the values is that we should 
     not, in this country, in this democracy, permit the kind of 
     hatred and bigotry that has stained the history of this 
     Nation over a considerable period of time. We should not 
     tolerate it. We keep faith with these men and women who are 
     serving overseas when we battle that hatred and bigotry and 
     prejudice at home. So we are taking a few minutes in the 
     morning to have this debate and discussion.

  Those were Senator Kennedy's words.
  This is not a long debate by Senate standards. This is a reasonably 
long debate to give everybody an opportunity to express their views. 
But we have debated this before 2 years ago. We have adopted this 
before 2 years ago. It was the right thing to do then for the men and 
women of our country, as well as to keep the faith with the men and 
women who put on the uniform of this Nation and fight for the values 
this Nation represents.
  Finally, America has taken many steps throughout our history on a 
long road to becoming a more inclusive Nation, and our diversity is one 
of our greatest strengths. Our tolerance for each other's differences 
is part of the lamp that can help bring light to a world which is 
enveloped in bigotry and intolerance. Hopefully, we can take another 
step if we adopt this amendment.
  So the Matthew Shepard Hate Crimes Prevention Act of 2009 furthers 
the goal of protecting our citizens from crimes of hate and deterring 
those crimes. I hope we have a resounding cloture vote, and again, 
hopefully, that can occur later on this evening.
  I yield the floor and note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KERRY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KERRY. Madam President, I further ask unanimous consent that I be 
permitted to proceed as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                       Energy and Climate Change

  Mr. KERRY. Madam President, earlier today, during the Democratic 
policy committee luncheon, we were privileged to hear from the CEOs of 
three of America's largest companies: DuPont, Siemens, and Duke Energy. 
It seems we are reaching that point in Washington where folks are 
starting to line up to argue ideological and nonfactual points of view 
with respect to one of the major issues facing our country. This is not 
unusual. Every great debate in history--certainly since I have been in 
the Senate and well before that--has always been subject to one 
interest group's or another interest group's interests. Those are often 
conditioned by phony studies, by one particular industry's funded 
study, almost inevitably always not peer-reviewed.
  So it is that we are beginning to see this kind of a lineup now as a 
response to the action taken by the House of Representatives, which 
passed climate change legislation, and a response to the schedule that 
the majority leader has put us on in the Senate with respect to this 
legislation. So I wanted to take just a couple of minutes and come to 
the Senate floor, and I intend to do this on a periodic basis over the 
course of the next weeks and months as we begin to think about our own 
approach in the Senate to this critical issue.
  Let me say to the Chair and to my colleagues that I hope we can all 
keep open minds so we will look at this in the context that it ought to 
be looked at, which is the national security interests, the security 
interests of our Nation; i.e., energy independence, the fact that we 
send hundreds of billions of dollars every year to parts of the world 
that doesn't wind up being invested in American jobs, in America's 
direct future and, in many cases, money which winds up in the hands of 
jihadists in one country or another and works against American 
competitiveness. That is one reason to think about this issue 
seriously.
  Another is that China, India, and other countries are taking this 
issue very seriously.
  Again, today we heard from the CEO of one of America's largest 
corporations. I think DuPont is one of the largest chemical companies 
in the world. The CEO said very directly to us that he is concerned 
about China's commitment as opposed to our commitment, and the fact 
that out of the top 30 solar, wind, and battery companies in the world, 
only 5 are in the United States of America.
  We are the country that invented many of these technologies, but 
because ideology trumped fact and reason in the course of the 1980s, 
the guts were pulled from the energy laboratory out in Colorado, and 
the United States lost its lead in photovoltaics, alternatives, 
renewables, to Japan, to Germany, and other countries.
  Ironically, as the Cold War ended and we had invested so heavily in 
that victory in the beginning of the 1990s, we saw the countries that 
had been locked in by the Communist bloc--the now Czech Republic, then 
Czechoslovakia, Bulgaria, Romania, other countries

[[Page 17985]]

that sought to undo the devastation of the command control policies 
that had spread ash within 50 miles of a powerplant so there was no 
living plant, and you couldn't grow anything and the rivers were 
polluted and the lakes and so forth, and they sought to undo that--
where did they go for the technology? They went to Germany and Japan. 
We lost hundreds of thousands of jobs, economists currently estimate, 
by the blinders we put on that precluded us from buying into the 
future, from investing in that future.
  So I hope colleagues will look carefully at the economic realities 
that are staring at us right now. China is investing $12 million-plus 
per hour in a green economy. They are investing six times the amount of 
money of the United States of America. The Pew Foundation has found 
that from 1996, approximately, until 2007, the greatest job growth in 
our country came from the alternative renewable energy sector, from new 
technologies--about 9.1 percent, as opposed to the growth of about 3.7 
percent or so that we saw in the normal job sector.
  In a State such as North Dakota, for instance, I think they have had 
about 30 percent growth in the alternative renewable energy sector, and 
they rank today 24th in the Nation in terms of wind power production. 
But the Wind Institute tells us they could be No. 1 because they have 
the best wind in the world--in the United States, at any rate--and they 
could produce 10,000 times the entire electricity needs of the State of 
North Dakota just from wind power alone. That is a huge amount of jobs 
to be created and a huge amount of money to be gained, a lowering of 
cost for their consumers, and we could go to other States around the 
country and find similar patterns, where there are very significant 
increases in the economic base of the alternative renewable energy 
sector to the exclusion of a very flat level--if not no growth--with 
respect to normal sectors of our economy. What is critical is that 
China--I just spent a week there about a month ago, purposefully going 
there to meet with Chinese leaders about global climate change.
  Obviously, I am as committed as any colleague in the Senate to 
creating an agreement with other nations that holds everybody 
accountable. Obviously, if the United States does this all by itself, 
it is not going to work. But China is sitting there saying the same 
thing: If we do this and the United States doesn't do it, it is not 
going to work.
  The problem is that the U.S. bona fides on this aren't very good. The 
fact is, we have been deniers of the existence of the problem, while 
other countries are proceeding to try to deal with it. The fact is, we 
were, until last year, the world's major emitter of global greenhouse 
gases. It is very difficult to go to other countries and say, you have 
to do this and that, and they look at us and say, what have you done 
about it?
  For countries in Africa and in the less developed world--Indonesia, 
parts of South Asia, and other places--they look at us and say: Listen, 
for the last 50 years, you guys have been creating this problem. We 
have not been able to develop, we are not a developed nation, and you 
are sitting there telling us we have to make up for the problem you 
have created, and now we have to spend a lot of money for it.
  The fact is, they are willing to be part of it, they are willing to 
be part of the solution, but the United States has to step up and show 
leadership and take action. The bottom line is this: If the United 
States doesn't step up and take action and show leadership, we are not 
going to get an agreement in Copenhagen and things will get worse. Some 
people will say: So what; maybe we will do it down the road. I have 
news for you--and this is absolutely substantiated in science, as well 
as in technology and economic modeling--if we don't do it now, every 
year we delay, it gets harder and more expensive and it gets more 
dangerous.
  If you really want to look out for the citizens in your States, do it 
now because it will be less expensive to do it now than it will be in 
the future. The real taxpayer protection effort here is to do climate 
change now. That is why, as I said, CEOs of major corporations in our 
country are saying: Give us certainty in the marketplace and give it to 
us now so that we know what our investments will be as we go forward 
and we can put together a business plan that is intelligent, 
thoughtful, and based on the realities of where the economy is going to 
go.
  Huge fluctuation in natural gas prices or in the price of coal or 
what is going to happen with respect to sequestration--all those things 
create enormous uncertainty. If you are a coal State, a coal interest--
and we have plenty of them here--you ought to step back and look at 
what is happening in the marketplace.
  Coal is under pressure now. We had Jim Rogers of Duke Energy tell us 
today that they have had a whole bunch of coal plants canceled. They 
have had them canceled on them by States that are refusing to proceed 
forward using coal. The fact is, a lot of States are turning away from 
coal. They are doing that because of the price issues but also because 
of the pollution issues.
  If you are a coal State and you want a future for coal, the way to 
protect that future is not to wait until the EPA regulates on its own, 
without coming to the table with help for the transition costs; the way 
to protect it is to recognize that you have to develop a clean coal 
capacity. The only way to develop a clean coal capacity is to get the 
allowances that come through a cap-and-trade system to be able to 
provide for a transitional support system that allows those companies 
to transition for the future.
  The fact is, in the bill that passed in the House--I don't know what 
the level in the Senate will be--there is a billion dollars a year for 
10 years for clean coal efforts.
  So the best way to protect coal and protect America, ultimately--
because we have a lot of coal, and it would be wonderful if we were 
able to burn it but do it cleanly--is to commit now to a system where 
we are able to provide the support necessary to develop clean coal. The 
truth is that we know what happens if you don't make this a mandatory 
structure.
  In 1992, President George Herbert Walker Bush committed us to a 
voluntary protocol in Rio, at what was called the Earth Summit. I went 
there, together with other Senators, including Max Baucus, Frank 
Lautenberg, Larry Pressler, John Chafee, Tim Wirth, and Al Gore. We 
went as a delegation. The President came and gave a speech there, and 
we committed to a voluntary framework to deal with global climate 
change in 1992.
  Here we are, years later, and it hasn't worked. During the last 8 
years, America's emissions of global greenhouse gases went up four 
times faster than during the 1990s. We have gone backward. While we are 
going backward, the science is coming back more and more compelling by 
the day.
  The Siberian Shelf Study, just released a few months ago, shows 
columns of methane rising from the ocean floor because the permafrost 
lid of the floor is melting, as it is on dry land in Alaska, where they 
voted recently to move the Nutak Village 9 miles inland. There are 
dozens of villages in Alaska that are now moving as a consequence of 
what is happening to the ice shelf and the rising sea levels. As the 
permafrost lid melts, methane is being released in Russia, the Arctic, 
and other places where it is exposed. Methane is 20 times more damaging 
than carbon dioxide. On the ocean floor, you have the columns of 
methane visibly rising through the ocean, and when they burst out into 
open air, if you lit a match, it would ignite. That is how potent it 
is. That is an uncontrollably dangerous potential threat to everybody 
unless we tap into it or learn how to do that or commit to some other 
methods of controlling this.
  The fact is, a 25-mile ice bridge that has existed for thousands upon 
thousands of years, which connected the Wilkins Ice Shelf to 
Antarctica, shattered, fell apart a number of months ago as a 
consequence of what is happening. A number of Senators have been up to 
Greenland and have seen the level of icemelt taking place on the 
Greenland ice sheet. That Wilkins ice

[[Page 17986]]

sheet is floating in the ocean, and the Greenland ice sheet is on the 
rock. Many scientists worry that the river melt that is occurring 
underneath the ice sheet might, in fact, create a slide effect for 
massive amounts of ice that might break off and fall into the ocean. If 
the West Antarctic ice sheet melts and the Greenland ice sheet melts, 
that represents a 16- to 23-foot sea level increase. That is beyond 
comprehension in terms of what the impact of that would be. Just a 
meter of an increase, which is currently predicted for this century--
and we are on track to actually meet or exceed that--just a meter means 
the disappearance of Diego Garcia, the island we use to deploy 
important supplies to Afghanistan, Pakistan, and to deal with other 
issues. That will disappear. Countries such as Bangladesh and many 
islands will disappear, including the coast of Florida. The threat is 
enormous. The piers in Norfolk, VA, are all cemented to the ocean 
floor. If that rises a meter, that will be a cost. You can run down the 
list of things that will begin to happen.
  The Arctic ice sheet had previously, a few years ago, been estimated 
to disappear by 2030 or so. Scientists are now telling us that we will 
have the first ice-free Arctic summer by the year 2013--4 years from 
now. That means a lot of different things. It can mean the change of 
ocean currents and clearly a change in the ecosystem. It means simple 
things like as more ice is melted and the ocean is opened up--the ocean 
is dark, the ocean absorbs sunlight. As the sunlight comes down 
directly onto the Earth, that is absorbed into the ocean rather than 
reflecting back up, as it used to, off the ice and snow. The result is 
that the ocean warms even faster, which accelerates what is happening 
in the Arctic and what is happening in Greenland. So there is a 
boomerang effect to all of this.
  It is ultimately what scientists call the ``tipping point.'' That 
brings us to the issue of urgency here. Why is this urgent? It is 
urgent because for years scientists have been telling us that you have 
to hold down the level of greenhouse gases to--originally, they said 
550 parts per million. Then they revised that as new science came in 
and people realized things were happening faster than we thought. They 
revised it to 450 parts per million. Now scientists are revising again, 
and they are revising again because the rate at which the science is 
coming back tells us this is happening a lot faster than we thought and 
to a greater degree. Now they are revising it from 450 parts per 
million to 350 parts per million. Not everybody has accepted that, but 
that is going on. Why is that alarming? It is alarming because we are 
at 385 parts per million today.
  With the current rate of coal-fired powerplants coming online, the 
rate of increased emissions through new buildings and the lack of 
adequate standards on automobiles, and other things, we are pouring 
emissions into the atmosphere willy-nilly as if there is no tomorrow. 
Well, that could happen, the way we are going.
  The fact is, what is up there already--this is scientific fact. There 
is nothing that any opponent of global climate change has ever said or 
done or produced to indicate that this is not fact: Greenhouse gases 
live in the atmosphere for 100 to 1,000 years. As they live in the 
atmosphere, they continue to do the warming. So the warming we have 
done already has warmed the Earth by .8 degrees centigrade. So we can 
absolutely anticipate a compounding of that warming because the same 
amount or more is up there, and it is going to continue to do the 
damage. We don't know how to take it out of the atmosphere. So we are 
looking at a certainty of another .8 degrees. That takes you up to 1.6. 
And scientists are telling us the tipping point is at 2 degrees 
centigrade.
  I ask my colleagues to go look at the modeling that has been done by 
countless different groups around the world. This is not an American 
conspiracy somehow. This is not a Democratic or Republican thing. It 
doesn't have that kind of label on it. There are thousands of 
scientists who, for 25 years or more, have been drawing conclusions 
based on scientific analyses, and scientists--if you are a good 
scientist, you are also conservative, because all of the proclamations 
or findings you make are subject to peer review if you are a good 
scientist, if you are a legitimate study. The fact is, there are 
thousands of legitimate peer-reviewed studies that document what is 
happening in terms of the impact of global climate change. There are 
zero--not one--peer-reviewed studies that deny those thousands--not 
one. For all the industry studies you hear, all the scary tactics, like 
Chicken Little, saying the sky is falling, and the numbers that are put 
out, no peer-reviewed study supports an analysis that what the 
scientists say is not happening. We are looking at the potential here 
of catastrophic implications, which is why the United States needs to 
move.
  The science is one thing; you can put it over here. But what is 
happening is that other countries have committed to this. Their 
presidents, their prime ministers, their environment ministers, their 
finance ministers--all of these people have come together and made a 
commitment for those countries. They are moving. They accept the 
science. They also accept the dynamics of the marketplace. They want to 
be leaders in solar, leaders in wind, leaders in alternatives, 
renewable, biofuels--you name it. The fact is, unless the United States 
seizes this economic opportunity, we are going to lose the chance to be 
leaders in one of the greatest markets in history.
  The market that led us to great wealth during the course of the 1990s 
in the United States was the Internet and data management systems. That 
market was about a trillion-dollar market and about a billion users at 
the time during the 1990s, at least when we saw great wealth created.
  The energy market is a $6 trillion market with about 4.5 billion 
users, many of whom are potential users in places such as India, where 
solar could light a small village and run electricity pumps where they 
have no water today and no pumps and no development. There are 
countless things that could happen as a consequence of this that would 
have profound consequences on elimination of poverty, which has 
profound implications on eliminating jihadism in places all around the 
world.
  This is an opportunity to change the paradigm, if you will, into 
which we have been locked. The United States needs to lead. I want 
those batteries made in Detroit and countless other cities across this 
country. I named Detroit because we have the skilled workforce. The 
automobile industry is hurting. We should be building the cars for 
America's high-speed rail system there. We should be building the 
batteries there, not in China. We should be developing these 
technologies. These are ongoing jobs that repeat for the future, and 
they cannot be exported. What can be exported is the technology itself, 
which we have an ability to go out and sell to other countries, which 
is good for the American marketplace.
  As these weeks go on, we need to talk about this. I want to come back 
to one particular component. I want to underscore the national security 
implications.
  In 2007, 11 former admirals and high-ranking generals issued a report 
from the Center for Naval Analysis saying that climate change is a 
threat multiplier with a potential to create ``sustained natural and 
humanitarian disasters on a scale far beyond those that we see today.''
  In 2008, a national intelligence assessment echoed those warnings 
from inside our own government. GEN Anthony Zinni, former commander of 
our forces in the Middle East, was characteristically blunt in 
addressing this threat. He says that without action ``we will pay the 
price later in military terms, and that will involve human lives. There 
will be a human toll.''
  The estimates of the intelligence community and those looking at the 
national security implications are that we could have in a few years as 
many as 200 million climate refugees. We have an internally displaced 
issue today in Pakistan. We have it in Afghanistan, Iraq, and other 
countries. We can have environmentally displaced people who are forced 
to move because they cannot produce food because they

[[Page 17987]]

lose water. The problem of failed states will only be compounded as the 
instability that comes with those moving populations and the challenges 
of providing for those people grows.
  Believe me, American ingenuity, American military capacity, American 
lift, American medical capacity, American food aid--all of these things 
will be called on. And unless we act now, they will be called on to a 
greater degree than is necessary.
  So climate change, in fact, injects a major new source of chaos, of 
tension, of human insecurity into an already volatile world. It 
threatens to bring more famine. I invite my colleagues to talk with the 
developmental people in so many of these countries about the problems 
they are having today growing crops, about the change in rainfall, 
about the lack of water, about the desertification that is taking place 
in places such as Darfur. Time magazine had a headline a couple years 
ago: Do you want to prevent the next Darfur? Get serious about climate 
change. There are linkages here, and it is essential for us to 
understand the costs.
  None of the modeling that has been done to date tries to estimate the 
cost to the consumer, and that is a concern. In fact, there is an 
enormous amount of money being put on the table through the allowances 
to cushion this impact so that American citizens are not paying more 
for electricity and not paying more as a consequence of these changes.
  I believe there is a minimal cost. But the truth is that cost has not 
even yet been properly represented because no model to this date shows 
the impact of energy efficiencies in America that will reduce the cost 
for families. No study properly shows the cost of technology advances 
that will reduce the cost for communities and families. And no study 
shows the cost to the American consumer of doing nothing.
  If the United States does not do this, believe me, that is a tax on 
Americans, and it is a lot bigger than the costs that are going to come 
affiliated with the transition to a new economy which is sustainable 
for the long term for our Nation.
  As we go forward, I want to say to colleagues a couple of concerns 
people have expressed about cap and trade and other issues. The 
marketplace: Will the marketplace abuse this? Can we trust the 
marketplace to function? The answer is, all of us have learned some 
very tough and bitter lessons as a result of lack of regulatory 
oversight of the 1990s and the last 8 years. So we are going to have in 
our legislation in the Senate, which is not in the House, some 
mechanism by which--I am not going to go into all the details now 
because we are not going to lay out all the details of what we are 
going to do. But we are going to address this concern of market 
regulation in order to adequately guarantee transparency and 
accountability as we go forward.
  There are other concerns people have expressed. As the next days go 
on, we are going to show day for day exactly what the real costs are, 
what the real opportunities are, and how we can proceed.
  I close by saying that here is the choice, really, for us as 
Americans and as human beings. Let's say that the people who have no 
peer-reviewed studies at all, that people who want to be in the flat 
Earth caucus, or whatever, and argue this is not happening, let's say 
they are right and we are wrong and we do the things we are going to do 
because we think they are the right things to do. What is the downside?
  The downside is that America would have led the world in terms of 
technology because every other country is already doing this. Anybody 
who sits there today and says: What about China, what about China, 
ought to go to China and see what China is doing. China is determined 
to be the world's No. 1 producer of electric vehicles, and they are on 
the way to doing it. China has tripled its wind power goals and 
targets. China is putting in place right now a 20-percent reduction in 
energy intensity, and they are ahead of the curve in almost every 
sector but one and meeting and exceeding that goal. We are not doing 
that. They are doing that. China is the leader in wind and solar 
technology. China has a stronger commitment on automobile levels of 
emissions than we do, and it is going into effect before ours.
  I have talked with a number of well-respected observers, both in 
business and in journalism, who have been to China recently, and they 
have come back shaking their heads and saying: If we don't get our act 
in gear, China is going to clean our clock, and we are going to be 
chasing China in 3 or 4 years.
  If you are concerned about holding China accountable to a system, we 
better put something in place because that is the only way we are going 
to get a mechanism in Copenhagen that is going to help hold everybody 
in place.
  Here is the bottom line. If we don't get that mechanism, the 
President is not going to send anything up here, and we are not going 
to pass it at that point. We are not going to accept some global system 
that does not address this globally. We have been through that with 
Kyoto.
  The fact is the United States has to do what it has to do in order to 
make Copenhagen happen, in order to lead the globe in this effort. I 
hope our colleagues will recognize that.
  What else will happen if we are wrong and they are right? We will 
have cleaned up the air. We will have better health quality in America 
because we will have better air quality because we will have reduced 
particulates in the air by reducing global emissions.
  The largest single cost of children's health care in the course of 
the summer in the United States of America is children being committed 
to hospitals because of air quality, asthma attacks, in the course of 
the summer, and it is rising as a problem in our country.
  It will have reduced hospital costs, better quality of air, better 
health. What else is a downside of doing this correctly? We will have 
created millions of new jobs. We see that happening right now. Think of 
what happens when we set a global target and when the United States 
sets its own national target and businesses say: Hey, there is money to 
be made there.
  We have better transmission lines so we can send electricity produced 
from solar in Nevada or in Oklahoma or Texas, or somewhere, and you can 
sell it to the rest of the country because it can actually be 
transported there. The minute we do that, the private sector is going 
to say: Wow, that is worth investing in because we can make a return on 
our investment.
  Look at the size of the market. Today we cannot do that because we 
cannot send it around the country because we don't have a transmission 
system that allows us to do that.
  The worst that would happen is we move down the road to have cheaper 
electricity because we can move it from alternatives, renewables all 
around the country, have a smarter grid, and have the ability to reduce 
costs for Americans.
  What is another downside? Another downside is we might actually 
reduce poverty around the world because of technology advances. We 
might reduce the instability of countries and improve our own security, 
and we will reduce energy dependence because we will be able to produce 
our own energy at home and not depend on sending hundreds of billions 
of dollars to other countries in the Middle East and elsewhere. That is 
a downside.
  What is the downside if they are wrong? Catastrophe, absolute 
catastrophe because we go beyond the tipping point. I cannot stand here 
and tell you everything that is going to happen. But I read enough and 
have seen enough of what the scientists say are the potential impacts, 
and I have seen enough of those impacts already coming true. Just by 
evidence and common sense, you say to yourself: I don't want to put 
this to the test because there is no way to come back from it. There is 
no way to go over that tipping point and turn the clock backwards. That 
is the choice for all of us.
  I hope in the course of this debate we are going to have the kind of 
debate on the facts, on real studies, peer-reviewed studies, on 
analyses that make sense so we can make the kinds of judgments that the 
Senate deserves and that the American people deserve.
  I thank the Chair.

[[Page 17988]]

  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. UDALL of Colorado. Madam President, I ask unanimous consent to 
speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. UDALL of Colorado. Madam President, I heard the Senator from 
Massachusetts laying out the scenario we face not just as Americans but 
as inhabitants of this wonderful planet Earth. I was compelled to come 
to the floor and talk about what we are doing in Colorado in seizing 
the opportunities that the Senator from Massachusetts points out.
  He described ably and eloquently what I have characterized as a ``no 
regrets'' policy. We ought to take all of these steps because whether 
or not climate change materializes--and I am one who believes the 
science is very powerfully pointing in that direction--all of those 
steps would result in the benefits he described. Today I want to bring 
my home State perspective to this debate over cleaner, safer, and more 
secure energy sources.
  When we make this change, we will improve our national security. We 
lessen our dependence on foreign oil, we protect our Earth, and we 
preserve the air we breathe and the water we drink. Most of all, we 
keep faith with our children. I have long believed that we do not 
inherit the Earth from our parents; we are actually borrowing it and 
all its majesty from our children.
  Colorado has a unique perspective on this opportunity, and I think 
America can benefit from our experiences.
  For many years, we have been a national leader in developing energy 
sources that are traditional, such as coal and natural gas. And in 
recent years, we have begun to lead the Nation in producing renewable 
energy from the Sun, the wind, and from biomass.
  In 2004--the Presiding Officer, who is a former Governor, can 
understand the symbolism of what we did--I led a campaign along with 
the Republican speaker of our State house, Lola Spradley, to create a 
renewable electricity standard for our State. We barnstormed together 
in our State in that highly partisan 2004 election. We surprised people 
that a Democrat and Republican were campaigning together. It was not a 
Republican or Democratic issue; it was a Colorado issue and, more 
importantly, it was a Colorado opportunity.
  There were naysayers who tried to scare our voters by saying the 
renewable standard would raise energy costs and harm our economy. But 
our voters decided to take up the challenge and to commit to generating 
10 percent of our electricity from the Sun and from the wind and other 
clean sources of energy. Our clean energy producers went to work after 
we passed this measure, and just 3 years later our legislature, 
realizing we were soon to reach that goal, said: Let's double the 
standard. So we now have a 20-percent standard we are committing to 
reach by the year 2020.
  We are fortunate to have these ample supplies of clean energy 
resources in Colorado. But the real key to this has been releasing the 
ingenuity of our people and then setting goals that create a 
sustainable future. I wanted to share some examples from Colorado 
specifically.
  Just last week, Tristate, a Colorado utility, joined with a 
subsidiary of Duke Energy and announced plans to build a wind power 
facility in Kit Carson, CO, out in our eastern plains.
  Vestas--which many are familiar with as the Danish wind turbine 
supplier--recently broke ground on two new manufacturing plants in the 
city of Brighton that will eventually employ over 1,300 people. It is 
also building a $250 million plant in Pueblo that will be the largest 
facility of its kind and employ 500 people.
  Our Governor, Bill Ritter, has estimated that the solar component--we 
had a solar component in our renewable electricity standard, 
specifically to generate solar energy activity--has brought over 1,500 
new jobs to Colorado.
  I think it is fair to say we have wind turbines sprouting and growing 
like trees on our eastern plains and we have solar farms that are 
covering the entire San Luis Valley, which is one of our agricultural 
gems. This is as a direct result of Coloradans setting a goal and 
saying we are going to meet that goal. I guess I am optimistic enough 
about America to know that America can follow Colorado's lead. For me, 
it is when, not if, we commit to a cleaner, more sustainable energy 
future, we will lead the world in this next great technological 
revolution.
  The Senator from Massachusetts spoke to the awe-inspiring numbers 
that are potentials--a $6 trillion economy--waiting for us out there if 
we will only commit to pursuing it. The Union of Concerned Scientists 
has estimated that a 25-percent renewable electricity standard by 2025 
will lead to almost 300,000 new jobs in America, $260-plus billion in 
new capital investments, $13 billion in income to farmers, ranchers and 
rural landowners, and $12 billion in local and State tax revenues. 
Consumers would save $64 billion in lower electricity bills by 2025, 
while we would reduce the carbon pollution emitted by cars that would 
be the equivalent of taking 45 million vehicles off of our roads.
  I am talking about jobs, Madam President, but it goes much further 
than that. If, and I say when, we develop a clean energy economy, we 
will create a new manufacturing base. It will protect our lands and our 
water, and it will align a policy compass that helps us navigate toward 
a more prosperous future.
  I would like to take a minute and emphasize that the clean energy 
future I paint doesn't mean the abandonment of traditional sources of 
energy. We have coal and oil and natural gas in abundance. Nor should 
it shut the door on nuclear power. Quite the opposite. These sources 
will remain an essential component of our energy mix for the 
foreseeable future. I think, as Colorado's experience shows, a balanced 
energy portfolio will work and that we can find that sweet spot in an 
energy mix for the future.
  We have ample supplies of fossil fuel in Colorado, and we ought to 
continue to develop those sources. They are crucial to the livelihood 
of tens of thousands of Coloradans and still comprise the majority of 
our electric generation. Natural gas, in particular, is a clean and 
domestic source of energy, and it will be a crucial bridge fuel to the 
future.
  We have massive quantities of oil shale potential on our western 
slope, and we should continue to research to see if we can produce it 
in a commercially viable way and in an environmentally sensitive 
manner.
  Colorado has been able to bridge the divide, literally, between our 
western slope and our eastern plains and between conventional sources 
of energy from the last century and the clean sources of the future, 
and the rest of America must now do the same.
  The bottom line, though, Madam President, is we must have a 
comprehensive energy policy that transitions us to cleaner, safer, and 
more sustainable sources of energy while making full use of existing 
sources in a responsible manner.
  In Colorado, we have a very tangible interest in America adopting 
broad clean energy sources and therefore limiting our contribution of 
carbon into the atmosphere, and I would like to focus on one key 
element of life on our planet, and that is water.
  Water is the lifeblood of the entire West. When you grow up in the 
desert, as I did, you learn to treasure water. You learn that 
everything is shaped by it, and it may not always be there when you 
need it if you don't husband those resources. My constituents know that 
maintaining our water supply is crucial to the health of their families 
and to preserving the way of life we so value in the West. We have 
suffered through water shortages. We have seen drought.
  My father's generation--not that far removed from our generation--
experienced the great Dust Bowl of the 1930s. That was an ecological 
disaster that reminds us that while we are smart as a species, and we 
are industrious, Mother Nature always bats last.
  When scientists look at our part of the country, they predict that 
droughts will get worse and precipitation patterns will decrease in 
Western States

[[Page 17989]]

because of our use of and dependence on the traditional sources over 
the last century. People in Colorado know we can't ignore this threat. 
We have seen acre after acre of our forests devastated by the mountain 
pine beetle--an epidemic that was exacerbated by a warming climate that 
will get worse in the hotter drier conditions to come. When they see 
that, when I see that, we know that doing nothing is not an option.
  The cost of inaction is simply too high, and you see that point of 
view in all the States in my region of the country, regardless of the 
leadership at the gubernatorial level, at the legislative level. No 
matter what part of the country we are from, we have a stake in 
crafting a new energy policy. Beyond regional interests, members of 
both political parties know we have to meet this challenge because if 
we don't, it is not only our economic prosperity that is at stake, our 
national security is at stake.
  I was inspired this week to see that our former colleague, the highly 
respected, now retired, Senator John Warner, is traveling across the 
country making the case for a plan to address the threats from climate 
change. We can debate the causes of climate change, and we should 
continue to have that debate, but we know what we must do.
  First, we must lead the world in a clean energy revolution, and next 
we must acknowledge that our reliance on foreign sources of oil and 
fossil fuels isn't a sustainable strategy. Third, we must act soon.
  I used to think having a discussion about adapting to the changes 
being brought about by the emission of carbon was a mistake, and that 
by looking at adapting we were giving in to the problem. But I have 
come to realize that we have to be realistic and we have to recognize 
that the changes that are coming will have real impacts on all of us. 
If we don't act now, the changes that are coming at us and bearing down 
on us will have a terrible effect on future generations, and we will be 
doing those generations a terrible disservice.
  The longer we wait, the longer we deny, the longer we spend debating, 
the harder and, frankly, the more expensive it will be to deal with 
those changes. So the time to act is now. I urge all of our colleagues 
to join together to pass a strong, clean energy bill. We can drive 
America with clean energy.
  Madam President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. MENENDEZ. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MENENDEZ. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          Sotomayor Nomination

  Mr. MENENDEZ. Madam President, America has been listening to the 
confirmation hearings of Judge Sotomayor--the lengthy rounds of 
questioning, the probative approach of the members of the committee--
and we have seen an extraordinary jurist in action. We have seen her 
responses, witnessed the depth, dignity, and clarity of her thoughtful 
observations. We have seen a skilled, dynamic jurist carefully, 
thoroughly, calmly engage each member of the committee, showing each 
Senator a deference in tone and tenor that speaks directly to her 
temperament and what she will bring to the debate in the hallowed halls 
of the United States Supreme Court.
  I believe most Americans watching these hearings, though deeply 
concerned about the substance of the issues raised fundamentally--at 
the heart of it--care more about the person. They care about honor and 
decency and dignity and fairness. They care about her experience. They 
care about who Judge Sotomayor is and what she has accomplished in her 
long judicial career. They care about the record. And the record is 
clear.
  They care that the leaders of prominent legal and law enforcement 
organizations, who know her best and have actually seen her work, say 
she is an exemplary, fair, and highly qualified judge. They care about 
her work fighting crime, and that as a prosecutor she put the Tarzan 
murderer behind bars. They care that as a judge she upheld the 
convictions of drug dealers, sexual predators, and other violent 
criminals. They care that she respects their liberties and protections 
granted by the Constitution, including the first amendment rights of 
those with whom she strongly disagrees.
  Judge Sotomayor's credentials are impeccable. Set aside for a moment 
the fact that she graduated at the top of her class at Princeton. Set 
aside her tenure as editor of the Yale Law Review. Set aside her work 
for Robert Morgenthau in the Manhattan District Attorney's Office; set 
aside her successful prosecution of child abusers, murderers, and 
white-collar criminals; set aside her string of victories along the 
way, not to mention her courtroom experience and practical hands-on 
knowledge of all sides of the legal system. Set aside her appointment 
by George H.W. Bush to the U.S. District Court in New York and her 
appointment by Bill Clinton to the U.S. Court of Appeals; and the fact 
that she was confirmed by a Democratic majority Senate and a Republican 
majority Senate which alone tells this Senator--if she was good enough 
twice, she must be good enough a third time.
  Set all that aside, and you are left with someone who would bring 
more judicial experience to the Supreme Court than any Justice in the 
last 70 years and more Federal judicial experience than anyone 
nominated to the Court in the last century.
  Her record is clearly proof that someone so skilled, so committed, so 
focused on the details of the law can be both an impartial arbiter and 
still understand the deep and profound effect her decisions will have 
on the day-to-day lives of everyday people.
  Senators should focus on Judge Sotomayor's full 17-year record on the 
bench as well as her career as a prosecutor and corporate attorney.
  She has been clear and consistent in her answers, despite repeated 
questions and efforts to trip her up. She has been consistently more 
forthcoming than any other recent Supreme Court nominee.
  Almost every Republican Senator has asked Judge Sotomayor, in total 
more than a dozen times, about the same comment made in a 2001 speech, 
a single speech over 8 years ago at Berkeley. She has continued to say, 
frankly, openly, honestly, that her comment ``fell flat,'' that she 
never intended that any person would have an advantage in judging. She 
has given the same answer each time and each time made clear that ``her 
personal experience does not compel a particular result and prejudice 
never has a role in her judging.''
  She said again yesterday: ``I do not believe that any racial, ethnic 
or gender group has an advantage in sound judging. I do believe that 
every person has an equal opportunity to be a good and wise judge, 
regardless of their background or life experiences.''
  I know no Senator here has ever made a speech in which their quote 
fell flat or their comments fell flat or what they intended to say was 
somehow misconstrued. I know that has not happened among the 100 
Members of the Senate.
  On gun rights, Judge Sotomayor has consistently followed precedent in 
second-amendment cases. Yesterday and today she has reaffirmed her view 
that the second amendment includes the individual right to bear arms.
  She reaffirmed, again, today her statement from yesterday, when asked 
if she would be open to considering whether the second amendment 
creates an individual right applicable to the States, saying:

       I have an open mind on the question. . . . I would not 
     prejudge any question that came before me if I was a Justice 
     on the Supreme Court.

  Consistent with her judicial philosophy, she has strictly adhered to 
the precedent in considering gun rights and

[[Page 17990]]

on her commitment to the rule of law Judge Sotomayor has repeatedly 
stated over and over that she is committed to precedent and the rule of 
law in every case, a commitment reflected not just in words but in her 
17-year record as a fair, moderate judge.
  She said, ``As a judge, I don't make law.''
  That is exactly the approach we should expect and demand from any 
nominee for the Supreme Court.
  I implore my colleagues to look at her record, listen to her answers; 
they are clear, focused, respectful, forthright. She has answered every 
question directly, honestly, thoughtfully, and without equivocation. 
She has held nothing back.
  But I, personally, as I have watched these hearings, am beginning to 
wonder: Are we truly in search of answers or are we badgering the 
witness? I know that all of America is watching this hearing, but I 
have to tell you Hispanic Americans are watching it with great 
interest. Attempts at distorting a record that has been committed to 
the Constitution, to the rule of law, by suggesting that her ethnicity 
or heritage would be a driving force of her decisions as a Justice of 
the Supreme Court is demeaning to women and to Latinos, it is demeaning 
especially in light of a 17-year record that reflects totally the 
opposite.
  Maybe some of my colleagues think that by repeating that statement 
time and time again they will generate some opportunity to create an 
image that is simply not true--that they will create an image that is 
simply not true. For many of us who come from the Hispanic community 
within this great country, we have seen the efforts to have a class of 
people painted in a certain way, and I implore my colleagues who seem 
to be traveling down this road that they are running a great risk--that 
they are running a great risk. If this judge didn't have the 17-year 
record of fidelity to the Constitution, fidelity to the rule of law, 
fidelity to precedent--even when that precedent binds her in a way, as 
in the Ricci case, in which she had sympathy for the White 
firefighters, but nonetheless precedent kept her obligated to the 
decision that they had--I would say maybe that line of questioning is 
legitimate. But I must be honest with you, when it was raised once or 
twice or three times--but when it has been raised a dozen times, 
sometimes by the same Senator asking the same set of questions despite 
having gotten a full answer on the issue, it creates great concern for 
some of us who have been down this road in other paths at other times 
but with the same tactics.
  Clearly, this is one of the most gifted jurists in America, and we as 
a nation would be honored to have her serve on the U.S. Supreme Court. 
I hope these hearings will come to a conclusion soon. I look forward to 
the debate that will take place on the floor and I, as well as the rest 
of this country who are riveted on this process, are going to be 
looking for equal justice under the law--the template that is before 
the mantle on the Supreme Court: ``Equal justice under law.'' Judge 
Sotomayor deserved to be treated with equal justice in this process and 
this badgering of the witness, particularly in this line of questioning 
which has been asked and answered several times, raises serious 
concerns for those of us who have lived in this community, understand 
the challenges and understand the way in which people try to paint 
people in this community.
  It is time to end that line of questioning. It is time to have us 
have the committee move beyond it.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. WEBB. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WEBB. Madam President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Webb pertaining to the introduction of S. 1468 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. WEBB. I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Madam President, may I say for the information of my 
colleagues, we are working on a unanimous consent agreement so that we 
can take up the hate crimes issue, the F-22 amendment, and a Republican 
amendment. Both sides are working hard to get that resolved.


                           Health Care Reform

  This is an interesting time in America and in the Congress. We have 
the very important Defense authorization bill before us. We have the 
hearings for Judge Sotomayor. We have the HELP Committee reporting out 
its legislation. There may have been more issues before the Congress, 
but I don't recall them in the years I have been in the Senate.
  Today we had an event that is in the ``you can't make it up'' 
category. I read from the CNSNews.com. It is entitled ``Joe Biden: `We 
Have to Go Spend Money to Keep From Going Bankrupt.'''
  I quote completely from the news report from CNSNews.com:

       Vice President Joe Biden told people attending an AARP town 
     hall meeting that unless the Democrat-supported health care 
     plan becomes law the nation will go bankrupt and that the 
     only way to avoid that fate is for the government to spend 
     more money.
       ``And folks look, AARP knows and the people working here 
     today know, the president knows, and I know, that the status 
     quo is simply not acceptable,'' Biden said at the event on 
     Thursday in Alexandria, Va. ``It's totally unacceptable. And 
     it's completely unsustainable. Even if we wanted to keep it 
     the way we have it. It can't do it financially.''
       ``We're going to go bankrupt as a nation,'' Biden said.
       ``Well, people that I say that to say, `What are you 
     talking about, you're telling me we have to go spend money to 
     keep from going bankrupt?''' Biden said. ``The answer is yes, 
     I'm telling you.''

  That is a very interesting story. The thing that probably makes it 
more interesting is the Washington Post story today entitled ``CBO 
Chief Criticizes Democrats' Health Reform Measures.''
  I quote from the Washington Post story:

       Instead of saving the federal government from fiscal 
     catastrophe, the health reform measures being drafted by 
     congressional Democrats would worsen an already bleak budget 
     outlook, increasing deficit projections and driving the 
     nation more deeply into debt, the director of the nonpartisan 
     Congressional Budget Office said this morning.
       Under questioning by members of the Senate Budget 
     Committee, CBO director Douglas Elmendorf said bills crafted 
     by House leaders and the Senate health committee do not 
     propose ``the sort of fundamental changes that would be 
     necessary to reduce the trajectory of federal health spending 
     by a significant amount.''
       ``On the contrary,'' Elmendorf said, ``the legislation 
     significantly expands the federal responsibility for health-
     care costs.''

  Here we have on the one hand the Vice President today telling the 
American people that we have to spend money, we have to go spend money 
to keep from going bankrupt, and yet the Congressional Budget Office 
says that the proposed changes would weaken our economy and expand the 
Federal responsibility for health care costs.
  Continuing from the article:

       The chairman of the Senate Budget Committee, Kent Conrad 
     [Democrat from North Dakota] has taken a leading role in that 
     effort. This morning, after receiving Elmendorf's testimony 
     on the nation's long-term budget outlook, Conrad turned 
     immediately to questions about the emerging health care 
     measures.
       ``I'm going to really put you on the spot,'' Conrad told 
     Elmendorf. ``From what you have seen from the products of the 
     committees that have reported, do you see a successful effort 
     being mounted to bend the long-term cost curve?''
       Elmendorf responded: ``No, Mr. Chairman.''
       Asked what provisions would be needed to slow the growth in 
     federal health spending, Elmendorf urged lawmakers to end or 
     limit the tax-free treatment of employer-provided health 
     benefits . . .

  That has a little echo associated with it. I don't know where that 
idea came from.

       . . . calling it a Federal ``subsidy'' that encourages 
     spending on ever more expensive

[[Page 17991]]

     health packages. Key Senators, including Conrad, have been 
     pressing to tax employer-provided benefits, but Senate 
     leaders last week objected, saying the idea does not have 
     enough support among Senate Democrats to win passage.
       Elmendorf also suggested changing the way Medicare 
     reimburses providers to create incentives for reducing costs.
       ``Certain reforms of that sort are included in some of the 
     packages,'' Elmendorf said. ``But the changes that we have 
     looked at so far do not represent the sort of fundamental 
     change, the order of magnitude that would be necessary to 
     offset the direct increase in federal health costs that would 
     result from the insurance coverage proposals.''

  Then incredibly:

       Senate Majority Leader Harry M. Reid [of Nevada] dismissed 
     Elmendorf's push for the benefits tax. ``What he should do is 
     maybe run for Congress,'' Reid said.

  I have disagreed from time to time with the Congressional Budget 
Office. I have agreed from time to time with the Congressional Budget 
Office. But I don't think it is appropriate to use that kind of 
language from the majority leader of the Senate about these hard-
working people. This wasn't just Mr. Elmendorf's product. This was the 
product of endless nights and days of work on the part of the 
Congressional Budget Office. If you disagree with them, as I have in 
the past, disagree and give your reasons for doing so. But for the 
majority leader to say that what he should do is ``maybe run for 
Congress,'' frankly, I don't think is an appropriate response to the 
incredible work that these individuals are doing.
  Continuing from the article:

       But Senate Finance Committee Chairman Max Baucus . . . 
     expressed frustration that the tax on employer-funded 
     benefits had fallen out of favor, in part because the White 
     House opposes the idea.
       Critics of the proposal say it would target police and 
     firefighters who receive generous benefits packages. And if 
     the tax is trimmed to apply to only upper income 
     beneficiaries, it would lose its effectiveness as a cost-
     containment measure.
       ``Basically the president is not helping,'' Baucus said. 
     ``He does not want the exclusion, and that's making it 
     difficult.''
       But he added, ``We are clearly going to find ways to bend 
     the cost curve in the right direction, including provisions 
     that will actually lower the rate of increase in health care 
     costs.''

                           *   *   *   *   *

       Ideas under consideration include health-care delivery 
     system reform; health insurance market reform; and empowering 
     an independent agency to set Medicare reimbursement rates, an 
     idea the White House is shopping aggressively on Capitol 
     Hill.
       But Baucus is not giving up on the benefits tax. ``It is 
     not off the table, there's still a lot of interest in it,'' 
     Baucus said.

  Well, what this is all about--what this is really all about--is 
heading in the wrong direction with the wrong fundamentals of what the 
problems with health care in America are--a fundamental 
misunderstanding. The health care in America is the highest quality in 
the world. I went to M.D. Anderson with the Republican leader and the 
Senator from Texas, Mr. Cornyn. At M.D. Anderson--one of the great, 
premier institutions in America, where cancer treatment is incredible--
there were people there from 90 countries around the world. Most of 
those people were wealthy people. They had the choice of going anywhere 
in the world to get the treatment they felt they needed. They came to 
the United States of America. That is true of the Mayo Clinic. That is 
true of many other medical facilities and institutions in America.
  So the problem with health care in America is not the quality of 
care. The problem with health care in America is affordability and 
availability. The cost of health care continues to increase--inflation 
of nearly double digits. We cannot afford it.
  The Vice President is right when he says it is unsustainable. But 
when the President says that we want to do nothing, obviously, that is 
not the view of Republicans. We believe you have to do a lot. We 
believe you have to do a lot, and that is increase competition in 
America so people will have choices, affordability, and availability, 
and not a government-run health care system.
  So the architects of the legislation passed through the HELP 
Committee and being considered by the Finance Committee and that came 
through the House were fundamentally wrong to start with. They were not 
attacking the problem of health care in America, and that is the cost. 
And the quality of health care in America is what needs to be 
preserved.
  How do you install competition? You install competition by letting 
people go across State lines to shop for the health insurance policy 
they want. That is prohibited now. Why is that? Why is that?
  The other is wellness and fitness. We are in agreement, I want to 
say, on a lot of issues that have not been highlighted in debate on the 
floor--Republicans and Democrats. Wellness and fitness, insurance 
policies that will encourage such things; rewards by employers for 
people who practice wellness and fitness. In fact, probably one of the 
best known individuals in America today is the CEO of Safeway. They 
have had an incredibly successful program for their employees, where if 
they practice wellness and fitness--they do not smoke, they regularly 
engage in exercise, including membership in health clubs--guess what. 
They are rewarded for doing so. And the overall costs of health care in 
Safeway have gone down. They have told every insurer: Come, if you want 
to insure our employees, encourage wellness and fitness and let them 
make a choice. Do so.
  That is the essence of what we have to do. The problem in America 
with health care is that too often there are fixed costs. There is no 
competition, and there are incentives to drive up the costs of health 
care. We all know that. We all know there are certain procedures which 
are more rewarding than others, and the system is gamed, and that there 
are billions--tens of billions--of dollars of fraud, abuse, and waste 
in the Medicare system that have been identified on numerous occasions.
  We also know that medical malpractice is a problem, and we need to 
reform it. Some years ago, the State of California--not known as a 
conservative State, to say the least--enacted fundamental medical 
liability practice reform. And guess what. It has resulted in cost 
savings. It is well known that physicians practice defensive medicine, 
which many times accounts for a 10-, 15-percent increase in those costs 
for fear of being sued. And the new technology, which has made such 
tremendous advances, then, indeed, increases costs because they are 
overused because that physician knows, in some States, in some cases 
and places, unless every kind of test is administered--whether that 
physician thinks it is needed or not, it is going to be administered 
and prescribed in order to avert the eventuality of appearing in court 
and not having administered all the necessary, or what the plaintiff's 
lawyers believe is necessary, tests and procedures.
  So look, we know now--we know now--from the Congressional Budget 
Office, for the second time, that this proposal is not going to cure 
the health care issues of America. It is time we went back to the 
drawing board. It is time Republicans and Democrats sat down at the 
negotiating table--not calling one or two Senators down to the White 
House, not trying to pick off one Republican or two Republicans, not 
doing that.
  I know that with this plan the Democrats and the administration may 
be able to pick off a couple Republicans and get 60 votes and enact 
this massive movement of the government takeover--eventual takeover--of 
the health care system in America, or we can sit down together for the 
first time with incredibly knowledgeable people. There is nobody who 
knows more about health care than our two doctors, Drs. Coburn and 
Barrasso. There is nobody who knows more about health care than Senator 
Enzi, who has been our leader in the HELP Committee--Senator Alexander. 
There is a lot of knowledge on health care issues. We could sit down 
together, scrap this idea, scrap this ``spend money to keep from going 
bankrupt,'' scrap this proposal where the Congressional Budget Office 
says ``the legislation significantly expands the federal responsibility 
for health-care costs,'' that the measures would ``worsen an already 
bleak budget outlook, increasing deficit projections and driving the 
nation

[[Page 17992]]

more deeply into debt.'' That is not the proposal the American people 
want to pay the penalty for.
  So events today have been very interesting. The fact is, what we need 
to do now is sit down together for a change. I have done it in the 
past, I will admit, on issues that are not of this magnitude. I do not 
know if there has been an issue that consumes one-sixth of the gross 
domestic product of this country that I have been involved in. 
Certainly other major issues, certainly working together with my friend 
and colleague from Michigan on the Defense authorization and other 
measures to preserve our Nation's security. But this issue, I must say, 
causes all others to pale in magnitude. But that is also the reason why 
we should sit down together and not pass legislation that is purely on 
a partisan basis.
  Let's listen to the experts. Let's listen to the Congressional Budget 
Office. I know of no one who believes there is bias in the 
Congressional Budget Office. As I say, sometimes I have been very 
disappointed or disagreed with them. But I know of no one who thinks 
they are not doing the very best they can under the intense pressures 
of getting out these numbers.
  I want to take this moment to salute the Congressional Budget Office, 
whether I agree with or disagree with them, for the incredible work 
they have done in the past. I hope at some point to be able, when this 
health care debate is over, to enter into the Record the thousands of 
hours that have been put in by the Congressional Budget Office and the 
staff there in trying to come up with their best assessment so we can 
legislate with the benefit of the knowledge that, frankly, only they 
possess.
  So let's listen to them. Let's listen to other outside experts. Let's 
recognize the fact that this issue has badly divided this Congress. But 
let's also listen to the fact that the American people are becoming 
more and more skeptical of the proposals we are considering or that 
have been reported out by both the House and the Senate HELP Committee 
and maybe start over and do something the American people can believe 
in and for which we can tell the American people we put their interest 
first.
  I note my friend, the Senator from Michigan, is on the floor. I hope 
we can give a ray of hope to our colleagues and let them know how they 
are going to be able to spend the rest of the evening.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Begich). The Senator from Michigan.
  Mr. LEVIN. Mr. President, let me thank my good friend from Arizona, 
first of all, for all the effort he has made today with his staff. Our 
staffs have been working hard. There is a lot of progress on the 
unanimous consent request which will set out the path forward, not just 
for tonight. We, obviously, expect votes tonight--a number of votes 
tonight--but also for the coming days, when we come back here for votes 
on Monday.
  But there is progress being made, and the staffs are working very 
hard. We can actually see them in the back of the Chamber at times 
going back and forth with different ideas. But we are close. We are 
confident. We are optimistic we will fairly soon have a unanimous 
consent agreement.
  I again thank my friend from Arizona for all he has done to help 
facilitate this, and our staffs, because they are working hard and I am 
optimistic they are going to succeed.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. CARPER. Mr. President, I was going to talk about aircraft and 
aircraft procurement, and I will do that. But before I do that, I feel 
compelled to respond to the comments of our colleague from Arizona with 
respect to health care.
  It turns out, literally, as we gather here on the Senate floor today, 
negotiations are underway between Democrats and Republicans, led by 
Senator Max Baucus, the chairman of the Senate Finance Committee, and 
Senator Chuck Grassley, the ranking Republican on the Senate Finance 
Committee, to try to find common ground with respect to health care.
  In a day and age when we spend more money on health care than any 
other nation on Earth, we do not get better results. I think we have 
14,000 people who are likely to lose their health care in our country 
today--in a country where we have 47 million folks who do not have 
health care coverage. We can do better than that. There is a strong 
bipartisan effort, led by two very good people--Senator Grassley and 
Senator Baucus--to find common ground.
  As it turns out, I like to use the words of a friend of mine, Senator 
Mike Enzi of Wyoming, who talks a lot about the 80-20 rule and why he 
and Senator Kennedy have gotten so much accomplished--legislation 
coming out of the Health, Education, Labor, and Pensions Committee. It 
is because they agree on 80 percent of the stuff, disagree on 20 
percent of the stuff, and they focus on the 80 percent on which they 
agree.
  I think the same could be said about the legislation that is being 
negotiated today, again, in a bipartisan way. The President has said he 
wants a bipartisan bill. Our leaders on the Finance Committee want a 
bipartisan bill. I want a bipartisan bill. I think in order for us to 
actually get something good, something done that improves the quality 
of health care that is provided in this country, that slows the growth 
of health care costs, and bends that cost curve down, and makes it 
possible for us to extend coverage to a lot of people who do not have 
it, it is enhanced by having bipartisan legislation.
  I will not go further into that at this time. But I felt compelled to 
say I have not given up hope. My hope is that the efforts that are 
underway as I speak will bear fruit and maybe provide a roadmap to a 
plan we can agree to here in the Senate and in the House to build on 
the good work the Health, Education, Labor, and Pensions Committee has 
already done here in the Senate, and to enable us to find common ground 
with the House and, hopefully, with the Obama administration.
  Having said that--I know this might be a good segue--we are spending 
a ton of money on health care in this country. If you look at the size 
of our budget deficits, if you look at how much we spend in the country 
for health care--I am told it is about one-sixth of GDP--that is not 
sustainable. Medicare is likely to run out of money in about 7 years 
from now. That is not acceptable. We end up, meanwhile, not getting 
necessarily better results, and a lot of other countries are spending 
substantially less.
  We have great models for health care delivery in this country. I will 
mention a few of them that are showing the way to provide better 
outcomes at less money. They include the Mayo in Minnesota and in 
Florida; an outfit called Geisinger in Hershey, PA; Intermountain 
Health in Utah, Kaiser Permanente in northern California; a cooperative 
called Puget Sound in Washington State; Cleveland Clinic in Cleveland, 
OH. There are a number of them. For the most part, they are nonprofits 
or cooperatives that have shown it is possible to provide better care, 
better outcomes, for less money than what we are getting in this fee-
for-service operation that we now call a health care delivery system.
  We can do better. My hope is we will keep working at it and not give 
up and that we will continue to try to work across the aisle until we 
come up with a product we can bring to the floor and negotiate, debate 
it on the floor, and then go to conference with the House.
  In terms of things that we spend a lot of money on--not just health 
care--we spend a lot of money on the defense of our country. That is a 
major priority for our Nation. If we go back to 1990s, 1980s, 1970s, we 
went for a long time without balancing our budgets. In fact, it was not 
until, I think, fiscal year 1999, under the Clinton administration, 
that we actually balanced our budget for the first time, I think, since 
1968. It was roughly 30 years, three decades that we went without 
balancing the budget. I think we did it again in 2000, and then when we 
had the handover from President Clinton to President Bush, we left the 
new President with a budget that was, I believe, balanced once more.

[[Page 17993]]

  We sort of went from that point in time, kind of a high-water mark in 
terms of fiscal responsibility, and over the last 8 years we turned 
around and we went in the opposite direction. We ended up running up 
more new debt in the last 8 years than we ran up in our first 208 years 
as a nation. I will say that again. We ran up more new debt in the last 
8 years than we did in the first 208 as a nation. The debt for the new 
fiscal year, as we go through this worst recession since the Great 
Depression and trying to fight two wars, one in Iraq and one in 
Afghanistan, the meltdown in revenues, very high health care costs; we 
are looking at a budget deficit which, I am told for this year, may 
have already exceeded $1 trillion, which is the highest on record.
  I chair a subcommittee of the Homeland Security and Government 
Affairs Committee in the Senate. One of our responsibilities is to 
help, along with our colleagues, to scrub spending. One of the things 
we do is we look for spending that doesn't make much sense or where 
there is waste, fraud or abuse. I might say, in response to my friend, 
Senator McCain's comments on waste in the Medicare system, one of the 
encouraging things in the last 3 years is we have gone out and done 
what we call postaudit cost recoveries in three States for Medicare. In 
California, Texas, and Florida, we have actually gone out to see where 
money has been wastefully spent and to see if we can recover that 
money. The first year we discovered almost nothing, the second year we 
found a little bit, and last year we found $700 million. In just three 
States we did that, and now we are going to be doing the same kind of 
thing in 47 States, hopefully recovering a lot more money for the 
Medicare system and maybe taking our lessons learned from recovering 
moneys misspent, inappropriately spent for Medicare, and do the same 
kind of thing for Medicaid, and that will put a lot of money back into 
the Treasury.
  My subcommittee focuses on, among other things, wasteful spending, 
and one of the things we have looked at is cost overruns for major new 
weapons systems. With the help of the Government Accountability Office, 
we went back to, I think it was 2001, and we looked for cost overruns 
for major new weapons systems. In 2001, I think it was about $45 
billion. We have seen it ramp up from about $45 billion in cost 
overruns for major new weapons systems, GAO tells us by last year, or 
maybe it was 2007 or 2008, this number had grown to almost $300 
billion--from $245 billion in 2001 over the next 6 or 7 years to almost 
$300 billion in cost overruns.
  Unacceptable. I think we have finally leveled off the increase. Not 
only is that kind of trend unacceptable, but the level of that enormous 
cost overrun in weapons systems is unacceptable as well.
  In a day and age when our Nation is awash in red ink and in a day and 
age when we are involved in wars in Iraq and in Afghanistan, it is 
critically important that we spend every dollar--defense dollar and, 
frankly, nondefense dollars--as wisely as we can, to get the most out 
of that money, whether it is health care to make sure that the dollars 
we are investing there are spent cost-effectively or whether it is for 
defense to make sure that the money we are spending there is spent 
cost-effectively.
  Senator McCain is a Vietnam veteran, and he is a real hero, for me. 
But we have people who have served here--I think one or two might have 
been around in World War II. Senator Inouye won the Medal of Honor 
during World War II. We have had people who served in the Korean war, 
the Vietnam war, and other times of peace, as well as in times of war.
  I spent about 23 years, 5 Active, 18 years Ready Reserve as a naval 
flight officer and much of that as a mission commander of a Navy P-3 
aircraft built by Lockheed. We used the P-3 for years for ocean 
surveillance, tracking submarines during the Cold War so we would know 
where they were, and whenever we went up, we would know where to go 
find them and destroy them if we had to. The strategy was called 
mutually assured destruction. We, fortunately, never had to do that. We 
used them in the Vietnam war for a lot of coastal surveillance; low-
level flights off the coast of Vietnam and Cambodia. The P-3 was 
introduced into the fleet in 1960s, and it was introduced as a--
formerly used as a commercial airplane, a four-engine turboprop. We had 
problems with the P-3's wings. We used to say we were afraid they would 
fall off. I don't know if it was quite that bad, but we had real 
problems with the P-3s performing reliably as a naval aircraft and 
bouncing around the skies in all kinds of weather. A lot of work had to 
be done on the P-3 wing and, within a couple of years, we finally 
figured out the problem.
  They are still flying. We are still using them in Iraq--not to track 
submarines but all kinds of missions. We have used them for electronic 
surveillance over the years and we have used them for drug interdiction 
and now they are doing some special work over in Iraq and that part of 
the world. It is an airplane which started badly as a military 
aircraft, but it got a lot better.
  You can find the C-5As built in the 1960s, C-5Bs in the 1970s and 
1980s--rough startup, rough rampup on the aircraft. We had problems 
with the aircraft, and we are now overhauling the C-5Bs. We call them 
C-5Ms. And they are flying 85 percent mission capable. So that is very 
encouraging. It took a long while to work out the wrinkles, but I think 
we have now, and we are going to have a plane we will be able to fly 
for another 30, 40 years, getting a lot of good use out of it, meeting 
our military needs around the world.
  The F-22 has been around for a number of years--not as long as the P-
3, not as long as the C-5, but it has been around for quite a few 
years. We have, I think, close to maybe 200 of them that either have 
been built or we are planning to build.
  One of the things I find troubling--and I stand in support of the 
amendment offered by Senators Levin and McCain and ask unanimous 
consent to be added as a cosponsor of the legislation.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CARPER. Built, I think, largely by Lockheed, and a lot of the 
contractual work is being done in maybe close to 40, 45 States. But 
Lockheed does some great work. This particular aircraft, I am troubled 
by a number of things, as are the sponsors of the legislation. It is 
not just that they are troubled, and it is not just that I am troubled, 
but some other folks are troubled too. Let me see if we have a list of 
some of the people who are calling and maybe suggesting that the F-22s 
we have ordered are enough.
  Among the people who say, in this case, 187 F-22s, fighter aircraft--
not an aircraft that is used for a lot--a plane mainly built and 
designed to use for dogfights with aircraft from other nations in an 
earlier day; the Soviets or maybe the Chinese or some other country. 
But among the leaders of our country, they are saying, maybe 187 is 
enough. Not maybe but saying 187 is enough. Two Presidents, former 
President George Bush and our current President Barack Obama, they have 
said that not just in giving speeches, but they have actually said that 
with the budgets they submit to us, and in this case President Obama's 
first budget and the last budget, or maybe several budgets from 
President Bush.
  Who else has said 187 is enough? Well, Secretaries of Defense; not 
only the current Secretary of Defense, who is Bob Gates, but the 
previous Secretary of Defense, who was also Bob Gates, and I think his 
predecessor as well said 187 should do us.
  We have had three Chairs of the Joint Chiefs of Staff who have said 
187 F-22s is enough; we think that should do it.
  We have had the current members of the Joint Chiefs of Staff who have 
said 187 is plenty when it comes to F-22 fighter aircraft.
  Finally, two of the most respected Members of the Senate, Senators 
McCain and Levin, as leaders of this committee, have said: Well, this 
is enough. Given our other demands and our other aircraft we have 
available to meet this need, 187 F-22s is plenty.
  Let me take a look at the next chart, if we could, and see what we 
have. One

[[Page 17994]]

of the reasons why all the folks I mentioned have said 187 F-22s is 
enough, we think of some of the other aircraft we used, fixed wing as 
well as nonfixed wing aircraft; the F-15 fighter, a number of hours 
flown in Iraq and Afghanistan--these are rough numbers but about 40,000 
flight hours. We have a couple UAVs here, unmanned aerial vehicles, one 
called the ScanEagle, the other is called the Predator. The Predator is 
better known. But so far the ScanEagle has flown in Iraq and 
Afghanistan about 150 flight hours. The Predator has flown about a half 
million flight hours in Iraq and Afghanistan. One of our helicopters, I 
think the H-60, generally we think of as the Black Hawk, but Black 
Hawks have flown 900,000 flight hours in Iraq and Afghanistan. Down 
here at the bottom, the number of flight hours, as far as we can tell, 
flown in Iraq and Afghanistan, I am pretty sure this is correct: Zero 
for the F-22. That is a stark number, a stark contrast.
  Sometimes we tend to order weapons systems, build weapons systems, 
maintain weapons systems to fight wars such as the last war we fought, 
not thinking so much about maybe the weapons systems we need for the 
current war or we will likely to need for a future war. One of the 
reasons why this administration, the last administration, why this 
President, this Secretary of Defense and previous ones have said we 
don't think we want to do any more F-22s is because they believe that, 
for awhile, we are going to be fighting wars such as unfortunately we 
fought in Iraq and especially Afghanistan. That is going to be more the 
modus operandi. We are going to be fighting counterinsurgencies, and 
what we need are weapons systems and men and women who are trained to 
fight in those wars. The F-22, frankly, does not lend itself to that 
kind of war.
  I led a congressional delegation with four of my colleagues back at 
the end of May into Afghanistan and Pakistan, including our Presiding 
Officer. We learned a lot. It was wonderful, and we came home feeling 
very much encouraged about our strategy in Afghanistan, the men and 
women who are implementing that strategy, both on the military and the 
civilian side. One of the things we learned going into Pakistan is 
that, for years, the Pakistanis have been preparing to fight the next 
war not against the Taliban, not against al-Qaida, which happened in 
the northwestern province, but they have been preparing to fight the 
next war forever--I guess since 1947--against the Indians, against the 
country of India. They may have a weapons system to work just fine in 
that particular altercation if that were to occur. But their real 
threat, frankly, isn't as much India anymore; their real threat is the 
Taliban and the al-Qaida folks hanging out in those northwestern 
provinces on the border of Afghanistan. While India and Pakistan may 
have plenty of fighter aircraft, unfortunately, they don't have any 
helicopters. They need mobility and they need helicopters to be able to 
move their counterinsurgency forces. They don't have them. Frankly, we 
are sort of guilty in a way of the same thing with the F-22.
  Let's see what we have on the next chart. I will come to this in a 
bit. One of the things we think about when we think of aircraft we use 
is, first of all, the missions we need the aircraft for and the kind of 
wars and threats we are likely to face. That helps us make that 
decision.
  Occasionally, we look at how much it costs to fly an aircraft. We 
look at the dollars we spend to put an aircraft or helicopter into the 
air for an hour. I have seen a wide range of flight hour costs for the 
F-22--that it might be $22,000 per flight hour or as high as $40,000 or 
$42,000 per flight hour. I don't have that at my fingertips, the flight 
hour costs for other aircraft. But that is a lot of money for a flight 
hour for any aircraft, especially a fighter aircraft. Whether it is 
$19,000 or $20,000 or $40,000 an hour, that is a lot of money for the 
kind of job we are looking for the aircraft to do.
  We also look at who are we preparing to fight or what threat we are 
preparing to counter. Some people say just in case the Chinese ever 
give us trouble, to take them on we need the F-22s, or we may need 200 
more. At one time, General Corley said we needed about another 200. As 
it turns out, we have other aircraft to meet that kind of threat. I 
hope that is not going to ever materialize, because China is a major 
trading partner. I hope we don't ever get in a shooting war with them, 
nor with the Russians.
  We have other fighter aircraft. We have the F-15, F-16, and the F-18. 
We are in the process of building another new fighter aircraft that 
will be a joint aircraft that will be able to do fights in the air and 
other things, including air-to-ground attacks, which the F-22 doesn't 
lend itself to do. I think we are going to build about 2,500 F-35s. It 
has broad support. We have built about 50 so far. The cost per aircraft 
for the F-35 is about $80 million. I think the cost for building a new 
F-22 is roughly $190 million. So the F-35 may be $80 million a copy, 
and the F-22, which doesn't have the capability or the viability of the 
F-35, costs about $190 million--over twice as much. That makes me 
pause, and I hope it makes some of my colleagues pause as well.
  Last, everybody knows we are wrestling through a tough economic time 
in our country. We have lost a lot of jobs. We had a housing bubble and 
meltdown, a loss of jobs in banking and financial services, and a lot 
of manufacturing jobs. Chrysler and GM have gone into bankruptcy. They 
are coming out of that, and they have a new product line coming through 
the pipeline. The banks are stabilized and are lending money again, and 
some are starting to pay back to the government the money they 
borrowed.
  I am bullish about where we are. It will take a while before jobs 
come back, but I think there are encouraging signs about our economy.
  Having said that, a lot of people would like to have a job who don't 
have one. If we build another 190 or so F-22s, that would save some 
25,000 manufacturing, good-paying jobs. We cannot just sniff at that. 
Those are real numbers, and it is important for us in the States where 
the jobs are. If we think about it, if we are talking about building 
another almost 200 F-22s, and they cost roughly $190 million a copy, 
and we are talking about saving 25,000 jobs, if we multiply $191 
million by 194 aircraft, we come up with a total price of about $37 
billion for building those extra 194 F-22 aircraft.
  If the numbers are correct, that is about $37 billion. If we divide 
that by 25,000 jobs, that turns out to be almost $1.5 million per job. 
I nearly fell over when I saw that number--$1.5 million per job. We 
have passed a stimulus package, and the Presiding Officer and I voted 
for it. It was passed with bipartisan support, and I hope it will save 
a couple million jobs. Jobs make sense. But this is a lot of money for 
jobs.
  You can look at what we say we are going to spend in the stimulus 
package, the recovery bill, per job. I am not quick enough to run the 
numbers, but these are expensive jobs.
  I hope if we don't build another 200 F-22s, some of the folks who can 
build them at Lockheed Martin--hopefully, some of them will be able to 
build F-35s. They cost half as much to build, and they do more things. 
Hopefully, some of them will be bought by other countries. I am not 
aware that other countries have bought the F-22, but I think a lot 
would be interested in buying the F-35, given the variety of missions, 
the versatility, and the much lower cost.
  There you have it, Mr. President. I don't know if I have made a 
compelling case, but I appreciate the chance to share this with my 
colleagues and anybody else who is interested at a time when we are 
wrestling with enormous budget deficits, after 8 years where we 
literally doubled our Nation's debt, and when we are expected to run up 
the highest budget deficit in the history of our country, at a time 
when we have major cost overruns and a new weapon system, and when we 
have had literally two administrations, two Presidents, two Secretaries 
of State, and all kinds of Joint Chiefs saying: You know, we have a 
bunch of these F-22s. We have enough. It is not that we are going to 
stop spending money on national defense. We are going to spend a fair

[[Page 17995]]

amount of money in Afghanistan, and even though we are drawing down the 
troops in Iraq, we are going to continue spending money in that country 
as well. The war in Afghanistan is the right war, and we need to stay 
with it and crush the Taliban, help the Pakistanis crush al-Qaida, and 
stay with the folks in Afghanistan until they can help defend 
themselves and go on to a better economy and a better life. That is the 
important thing to do.
  We don't need the F-22 to do that. To the folks who have spent a 
number of years, and a lot of our money building it, we say thank you. 
But I think we have enough. We have plenty of other challenges to face.
  I appreciate this opportunity to speak.
  As I look around the Chamber, obviously, nobody listened with baited 
breath to what I had to say. Hopefully, they are in their offices and 
are tuned into C-SPAN II.
  With that, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.


                           Amendment No. 1511

  Mr. LAUTENBERG. Mr. President, today we are being asked to defend the 
very core of our American democracy; that is, the right of people to 
live freely, to move freely, to do what they would like to do as long 
as they do not bring harm to others. People want to be free from 
violence, free from fear, free from intimidation. And all too often we 
hear of crimes committed against innocent people based almost solely on 
bigotry and hatred. This Senate needs to send a message, a message that 
this is unacceptable conduct in our society, that these crimes are 
especially heinous, that these crimes must be severely punished, 
because it tears at the basic fiber of being freedom-loving Americans.
  An example of the horror that accompanies this kind of hatred is that 
on a day last month, someone turned killer because of religious hatred. 
This individual walked through the doors of the U.S. Holocaust Memorial 
Museum, which was then filled with visitors from all around the world, 
many of them children. His name: James Von Brunn. He raised a rifle and 
opened fire, killing Steven Johns, a security guard who was simply 
doing his duty, and wounding others before the individual was shot and 
subdued. Not only did Mr. Von Brunn take a man's life and terrorize 
bystanders, but he wanted to destroy this vivid reminder of how vicious 
man's hatred and bias could be against an entire group of people. Over 
6 million Jews died as a result of the Holocaust. Millions of others 
died also as a result of the Holocaust, stemmed primarily by prejudice 
and hate.
  The tragic fact is that our history is replete with examples of 
terrible hate crimes. In October of 1998, two men attacked and savagely 
beat Matthew Shepard, a student who was gay and was there at the 
University of Wyoming. Shepard died of his wounds a few days later, 
simply because he was a gay person. In June of the same year, who can 
forget that a Black man, James Byrd, Jr., was chained to a pickup 
truck, dragged along a Texas road, and was killed by declared racists.
  More recently, we have seen vulgar acts committed in the wake of a 
historic happening in America. President Barack Obama, an African 
American, won the Presidential election. In my home State of New 
Jersey, after the November election, a cross was placed and set afire 
on the front lawn of a couple, Alina and Gary Grewal. The cross was 
wrapped in a homemade banner that the Grewals had hung outside their 
home that simply read ``President Obama, Victory '08''--pride filled, 
honoring this incredible accomplishment that took place within America.
  At a time when our Nation should be celebrating the progress we have 
made, we must bring the full weight of the law to bear on those who 
commit such atrocious crimes. Unfortunately, existing Federal law 
hampers prosecutors from trying hate crimes effectively. Right now, 
current Federal hate crimes law applies only when a victim is involved 
in particular activities, such as serving on a jury or attending a 
public school. This legislation would protect victims of hate crimes in 
all situations, not just when a victim is involved in certain federally 
protected ones. This amendment would also finally expand Federal hate 
crimes protection to those victimized based on sexual orientation or 
disability. Some 15 percent of all reported hate crimes are linked to 
sexual orientation. Gay Americans should not be afraid to walk about 
freely, and violent individuals should know that the Federal Government 
will prosecute you if you commit a crime with hatred as the principal 
motivator. Hate crimes are the ultimate expression of ignorance and 
hate, and we must strengthen our Federal laws to protect people against 
them.
  Senator Kennedy first introduced this legislation in 1997, a year 
before Matthew Shepard and James Byrd were killed because of bigotry. 
It is time to pass this critical amendment and stand up for Americans 
who are victims of vulgar and senseless acts of violence that should 
not be happening in America without severe punishment, without the 
reminder that we are a nation comprised of many different ethnicities, 
different religions, different habits. It should not go without severe 
penalty if someone is attacked because their habit, their face, their 
color, their religion is different from the ones most popular.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Ms. STABENOW. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Hagan). Without objection, it is so 
ordered.
  Ms. STABENOW. Thank you. Madam President, I also ask unanimous 
consent to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Michigan.
  Ms. STABENOW. Madam President, thank you, very much.
  First, I want to congratulate, actually, on the underlying bill, my 
friend and colleague and the leader of the Armed Services Committee for 
all of his hard work on the bill that is in front of us. It is so 
important for the troops. I thank him for his leadership in such a 
strong way on behalf of the men and women who are serving us every 
single day and for all the things they need to be able to be supported, 
along with their families. So this is a very important bill, and I am 
hopeful we are going to be able to move through this very quickly.


                              Health Care

  Madam President, I did want to take a moment, though, tonight to talk 
about health care, about the specifics of the bill we have been working 
on now for about a year. We have had forums and meetings and drafts and 
proposals and working sessions for about a year now, I believe. I 
commend Senator Baucus for the incredible amount of time he has put in, 
as has his staff, with he and Senator Grassley, working, as they always 
do, so well together.
  There has been a tremendous amount of effort that has gone into this, 
and we will speak more as the process moves along about the specifics 
of the health care legislation. But tonight I want to take just a 
moment to talk about why it is so important to do it.
  If the system worked well now for everyone in the country, if 
everyone could find and afford health insurance, we would not be having 
this discussion. We would not have had this debate. This would not be 
something that would be a top priority for the President of the United 
States.
  But the reality is, the current system does not work for everyone. 
Even if you are part of the majority that has health insurance, you are 
probably seeing your copays go up, your premiums go up. You may be 
worried about whether you will lose your insurance if you lose your job 
or your spouse loses his or her job. You may be in a situation where 
you cannot find insurance because you have a preexisting condition that 
the insurance companies will not cover.

[[Page 17996]]

  There are many reasons why people today, even though they have some 
kind of insurance, are incredibly worried about the future, about what 
happens when they get sick or what happens when the kids get sick.
  Then, for those who do not have any health insurance, of course, it 
is an even more challenging story. We know there are millions of 
Americans--47 million and counting, in my home State of Michigan alone 
over 1 million people--who have no insurance at all. What happens to 
them when they get sick or when the kids get sick?
  So this is a huge issue, and the time has come to decide that health 
care is a right, not a privilege, in the greatest country in the world.
  We have been working for years. It has been 90 years--ever since 
President Roosevelt wanted to have a health care system that all 
Americans would be able to use as part of the Social Security Program--
that we have been trying to do this, trying to get it right. At that 
time, 90 years ago, there were not the votes to do that. Since then, 
Harry Truman wanted to have health care reform. It did not get done.
  President Johnson initially wanted to have a system that every 
American would be able to benefit from. That did not get done. But I am 
very proud that a first major step was taken with President Johnson and 
a Democratic majority and some Republican colleagues joining with them. 
I hope we are going to see that kind of bipartisan effort now. But we 
ended up with something called Medicare.
  If seniors or people with disabilities could have been able to get 
health insurance that they could find and afford at the time, Medicare 
would not have passed in 1965. It passed, along with Medicaid for low-
income seniors and families, because people could not find insurance. 
They could not afford it. That is why it passed.
  We are now in the same situation. Since that time in 1965, there have 
been a number of different efforts. A very important effort, one that 
there was bipartisan support to do, children's health insurance, was 
put in place--but still, not a system in America where everyone would 
be able to afford to buy insurance, to be able to get health care for 
themselves and their families.
  So here we are today. It is time to finish the job that was started 
years ago, to finally say: OK, we understand that health insurance is 
not like other kinds of insurance. You can choose not to buy a car if 
you do not want to, and you do not have to have car insurance. You can 
choose not to buy a house and not have homeowners insurance. You cannot 
choose not to be a human being and to get sick. So it is different.
  So the question for all of us is not whether people will ever need to 
use the health care system or whether they ever, in fact, will get 
health care; it is when and how and how expensive it will be.
  One of the major reasons today that the health care system is so 
expensive--and, in fact, we spend twice as much as any other country on 
health care. When you think about that, how crazy is that? We spend 
twice as much as any other country on health care and have over 47 
million people with no health insurance. Any economist would kind of 
look at that and say that is crazy.
  But we have a system now where the people who are uninsured or 
underinsured--or have their premiums and copays going up too much where 
they cannot afford to use their insurance--go to the emergency room, 
moms and dads going to the emergency room with their children.
  I have had the opportunity to visit emergency rooms, both when I have 
been in an emergency but also just there with emergency room 
physicians, with the nurses, to watch what happens. Anytime you have 
seen that, you know there are lots of moms and dads who have no other 
choice for their children than to take them to the emergency room.
  We also have more and more people who, because of dental problems--
the inability to get basic dental coverage--end up in the emergency 
room of the hospital. When that happens, people are served. That is the 
job of the hospitals, and I believe we should be focusing on emergency 
rooms and emergency room physicians and giving them extra support 
because of what they do. But the reality is, they are served. Then who 
pays for it? Well, everybody who has insurance pays for it because the 
hospital then takes the uncompensated care and rolls it over into the 
costs of those with insurance. That is the system today. People get 
care.
  They walk in the emergency room sicker than they otherwise would be--
maybe waiting until late Friday night to have something happen, hoping 
they were not going to have to go to the doctor because they could not 
afford it, and they end up in the emergency room on the weekend.
  The reality is, we have now institutionalized the system that is the 
most expensive way possible to provide health care in this country. So 
that is a huge issue.
  We know if everybody is in it, if everybody is part of the system, 
and we spread all the different ages and health conditions and 
geographic disparities and all of the different pieces and variables in 
the system, and we have everybody in some way covered--everybody in--
costs actually go down, which is also different than other kinds of 
goods and services. So health care is, in fact, different.
  But we now have a system where we are paying for this and providing 
for this in the most expensive way possible. So there are many 
reasons--many reasons--why we need to have a sense of urgency about 
health care and what we are doing here. We need to remind ourselves 
daily that this does not go away just because we are not paying 
attention. When we are not paying attention, the prices go up. When we 
are not paying attention, people get sick. When we are not paying 
attention, businesses continue either not to be able to cover their 
employees or drop coverage because of what is happening on the costs.
  The only question we have is, when are we going to act? That is the 
only question for us--not whether we are going to pay for it but it is 
how we are going to pay for it. Are we going to create a system that 
over time actually lowers costs by doing the right thing and having a 
system that incentivizes the right things or are we going to continue 
to do what we do now: costs going up, exploding, and the availability 
of care going down? That is the system now.
  As we discuss all of these issues, it is very complicated. All of us 
involved in this wish it were not. This is an incredibly complicated 
issue. As we have been working our way through this very hard, we have 
heard from lots of people in this discussion, those who operate as a 
business, who make a profit off this current health care system, those 
who are involved in it in various capacities. But I don't think we hear 
enough from those who are affected, from people in Michigan, people in 
North Carolina, people around the country who are trying to take care 
of their families, trying to be healthy, trying to get the care they 
need when they are sick, operating under this system.
  Because of that, I set up on my Web site something I am calling my 
Health Care People's Lobby. We have lots of lobbyists here. I have 
invited people from Michigan to be a part of my Health Care People's 
Lobby and share their stories about what is happening for them. I wish 
to share a few of those comments with my colleagues this evening, from 
thousands of people who are now a part of my Health Care People's 
Lobby.
  Tricia Kersten from Bloomfield Hills, MI, says she doesn't understand 
why some Senators don't seem to understand the ``unbelievable, 
daunting, and debilitating effect the cost of health care causes their 
voters.''
  She is right. We all need to be paying attention to that. The cost of 
health care today, as I mentioned, is crushing our families and 
businesses, large and small, and that has to be part of--and it is, it 
is--part of the goal. In fact, it is at the top of the list in terms of 
our goals--lowering the cost.
  Janet Rodriguez, St. Joseph, MI, wrote that her health care premiums 
for her family of three are over $700 a

[[Page 17997]]

month. Because her employer pays a portion of her premium, and because 
those premiums are going up and up every year, she hasn't gotten a 
raise in 3 years.
  This is a very common situation for workers who get their insurance 
through their employer. More and more people are having to trade off 
getting a wage increase that would help pay the mortgage and food and 
clothes and send the kids to college for a health care cost increase 
that is occurring, and their employers having to pay more of that or 
their having to pay more of that.
  Cheryl Crandall of Pontiac, MI, is about to lose her COBRA benefits 
next month and has been shopping for personal insurance. Within 2 
weeks, the price had already jumped from $22 a month to $667 a month. 
So it was $22, and it jumped to $667 a month. That is $150 more than 
her house payment. She says: ``We are very, very frugal people. No big 
vacations, no expensive toys, and we are not impoverished yet. But 
premiums like this for mediocre coverage, large deductibles, large 
copays, can break even the most stable family.''
  We know that is what is happening. Her story is shared by thousands 
and thousands of people I know across Michigan.
  Our current health care system is bankrupting too many families. We 
know that over 60 percent of bankruptcies are linked to medical 
expenses. Seventy-five percent of families who file for bankruptcy 
actually have health insurance, and those who have insurance on average 
have medical expenses of over $18,000 when they file, even though they 
have a health insurance policy. It is even worse for those without 
insurance.
  Sandra Marczewski from Waterford, MI, wrote to me that she and her 
husband have been without insurance for 7 months. She writes: ``You 
have no idea the fear I walk around with every day.''
  This is a fear faced by millions of Americans, tens of millions of 
Americans, hard-working Americans, people who have done the right thing 
their whole life and now find themselves struggling in this economy and 
facing that fear. After they put the kids to bed at night they say a 
little prayer: Please don't let the kids get sick. They stay up 
worrying about what is going to happen if they do get sick; avoiding 
that cancer screening because they don't want to hear it if it comes 
back positive, because they don't think they can do anything about it. 
It is a fear that grips the heart of too many Americans, and it is so 
critical that we move forward in a way that will allow us to address 
what is happening with American families.
  Lee Harshbarger of Ypsilanti lived with that fear. He had no health 
insurance for 9 years. Thankfully, his wife's job now covers him, but 
they worry every day: What will happen if she loses her job or if her 
employer has to cut back on insurance or drop insurance? What will 
happen then?
  It is not just families who are hurting either. We know it is our 
businesses, large and small. I have had so many small business people 
come up to me and say: You have to do something. I want to cover my 10 
employees, my 5 employees. I can't even find insurance for myself at a 
reasonable rate, let alone the small group of people who work for me.
  A.J. Deeds from Ann Arbor, MI, used to operate a small business in 
Birmingham. They had 12 employees and they offered them health 
insurance, but they soon found their competitors didn't offer these 
benefits and they were left behind competitively, so they faced what 
many businesses and families face, which is a race to the bottom. You 
can't compete if you offer health insurance or a good wage, so you drop 
the health insurance and you push down the wage.
  By 1997, he wrote, they had to stop providing health insurance 
because they couldn't afford it anymore and be competitive with the 
other companies that didn't offer insurance. That same year, A.J.'s 
first child was born and his monthly insurance premium shot up to over 
$800 a month for three people.
  Some have argued that a public health insurance plan would put 
bureaucrats between you and your doctor. How many times have we heard 
that? But right now, we have a bureaucrat between you and your doctor, 
and it is an insurance company bureaucrat. This notion that the doctor 
can offer whatever tests or procedure he or she feels they should for 
you is just that; it is not in the real world. It is not real that an 
individual who has insurance can go out and see a doctor or see any 
doctor they want, get any procedure, any treatment they want. They 
first have to look through mounds of paperwork in the insurance policy 
to see if it is covered, and then the first call the doctor makes is to 
the insurance company to determine whether they will pay for it.
  I believe it is incredibly important that we create a system--this is 
what we are working to do--that is much more about doctors and 
patients, much more about that. A critical part of this--and I 
appreciate that the industry is supportive of this--is changing the 
system so that someone can get insurance if they have a preexisting 
condition, that we change the rating bands to make it more affordable 
and do a number of other insurance regulation reforms. This is 
incredibly important. But it is also true that right now, your 
decisions about health care depend upon, A, whether you have health 
insurance; and B, what it will cover, what the copays are, what the 
premiums are. You are in a box that is dependent on whatever that 
insurance policy is and what it will cover. The worst thing is when 
someone pays in for years and believes something is covered, and it 
should be covered, and finds out it is not or finds out they are ill 
and are then dropped. So there are a number of changes that need to 
take place there as well.
  I have to put a plug in because in Michigan we have, by State 
statute, established BlueCross BlueShield as a nonprofit to insure 
everyone in the State, the insurer of last resort, and that has worked 
very well for us, and I am very appreciative of the great work they do. 
That is not true everywhere. I think we have some serious issues around 
the for-profit insurance companies that we need to take a look at as 
relates to the costs that people are paying.
  Robert Balmes from Negaunee, MI, up in the Upper Peninsula, had to 
jump through hoops with his insurance company to get a medical device 
he needed. He was forced to deal with the company's in-network sellers, 
even though he could have gotten the same device much cheaper from a 
different supplier. His 20 percent copay would have been much lower if 
he could have gotten the device from the seller of his choice. If he 
could have gone where he wanted to go, it would have been cheaper, but 
he wasn't given the choice by the insurance company. He had to pay what 
the insurance company said or pay the whole thing on his own.
  Bea Stachiw from Rochester Hills is also fed up with her insurance 
company. She has an individual policy, which is one of the most 
expensive ways you can get insurance, that costs her $400 a month as an 
individual, which she describes as ``sketchy, at the least, where I 
have to pay $2,500 up front as a deductible.'' She is limited to two 
doctors' visits a year. So two doctors' visits. Talk about coming 
between you and your doctor--two doctors' visits a year, and she has a 
copay. She needed a routine medical procedure and had to pay over $700 
out of her pocket. For people struggling to make ends meet, those kinds 
of costs are not acceptable. People can't afford this.
  Again, this whole process of health insurance reform is about 
supporting doctors and nurses to be able to do what they were trained 
and want to do, and to be able to make health care available to 
Americans, young and old, with families, without, small businesses and 
large. That is what this is all about.
  I am very pleased we are working on an approach that would give 
people choice, that would allow people to keep their insurance if they 
wish to, and I think that many people--again, my own family would say, 
we want to keep ours. Well, we are not in the Federal

[[Page 17998]]

system, so we know that many people would say they are satisfied, that 
they like what they have. I say, great, to that. We want to make sure, 
No. 1, that people can keep what they have, but if the system is broken 
for you, we want to fix it. That is what health reform is about. Keep 
what you have if you like it. Let us fix what is broken so everyone has 
the opportunity to have the health care they need.
  There are a number of ways in which we are working to do that. I 
mentioned earlier making sure that everyone is covered, a part of 
lowering the costs so we don't have too many people using the emergency 
rooms inappropriately. We know that payments to providers drive the 
system, and the proposal we are all working on would focus on quality, 
not quantity, of tests; would focus on health and wellness, not 
sickness, so we are incentivizing those things that allow people to be 
healthy, that encourage and support primary care doctors as the first 
line of defense, and nurses as a first line of defense so that people 
being able to get the care and the funding they need, the screenings, 
the prevention they need, that is all part of this very important 
change.
  The long-term savings in the system come from changing the system to 
health care rather than sick care and quality rather than quantity. We 
also know that, as I said before, insurance reform is an incredibly 
important part of it, so everyone can get the insurance they need, that 
it is affordable, and that they know they won't be dropped if they get 
sick.
  Finally, it is very important that we have the right mix of choices, 
that we have private sector options but that there also be a public 
health care option that is consumer driven, that is a benchmark on the 
true cost of providing health care, so there can be competition. It 
needs to be level and fair competition. I believe we need that 
competition.
  Madam President, we have a lot of work to do in the coming weeks. It 
is very important work. The American people have waited long enough for 
us to get this done. We know it is complicated. People of good will are 
working to come together on an approach, but we need to get it done 
because people in each of our States--my great State of Michigan and 
across the country--are counting on us because the system doesn't work 
now for too many people. It is not acceptable. Getting sick is not a 
choice. Worrying about your children, your family, your moms and dads, 
your friends and neighbors, and what will happen to them when they do 
get sick is a fear or a worry we need to be able to address. We need to 
take that worry off of the American people and say that we get it.
  Health care should be a right, not a privilege, in the greatest 
country in the world. That is what this work we are doing is all about. 
I very much hope we are going to have a product that will be widely 
supported and that we can move it on to the President as soon as 
possible.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DODD. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DODD. Madam President, what is the business before the Senate?
  The PRESIDING OFFICER. The Senate is considering S. 1390.
  Mr. DODD. And that is the Defense authorization bill; is that 
correct?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. DODD. Madam President, I wish to spend a couple of minutes 
talking about one of the issues we are going to be debating and voting 
on in the next number of days, and that is the consideration of the F-
22 Raptor.
  I, first of all, want to inform my colleagues, as I have on previous 
times, of my interest in the subject matter. I am not a member of the 
Armed Services Committee. I have great respect for Carl Levin, one of 
my dearest friends, chairman of the committee, and John McCain, who is 
the ranking Republican on the committee, and my colleague Joe Lieberman 
serves on this committee, and many others who worked hard, I know, on 
the Defense authorization bill.
  One of the matters that is going to be the subject of some debate, as 
I mentioned, is the consideration of the additional F-22 fighters that 
were voted on by the committee, in a narrow vote, a 13-to-11 vote, I am 
told. Now Senator Levin and Senator McCain have offered an amendment 
that would strike the $1.75 billion for these additional aircraft. I 
want to address that subject matter.
  My State is going to be adversely affected. Somewhere between 2,000 
and 3,000 jobs will be jeopardized if this amendment carries. 
Obviously, that is of great concern to us in Connecticut. It is an 
argument I hope will have some weight with our colleagues as we are all 
faced with these matters from time to time. I know just making a 
Connecticut argument to 99 Senators is not necessarily going to 
prevail. I hope my colleagues will consider what we are doing.
  Our Nation leads the world in aerospace. There is no one even close 
to our ability to produce the most sophisticated aircraft in the world. 
The F-22, without any doubt, is the most sophisticated aircraft in the 
world. But we are told the Chinese and the Russians are quickly 
developing fifth generation technology to compete with our F-22.
  My concern is, if we end up doing what the Levin-McCain amendment 
does--and that is to terminate this program prematurely--we end up with 
a number of F-22s that will hardly provide the kind of security that 
will be required. And for that $1.75 billion in this budget, we help 
sustain 25,000 jobs nationwide.
  I cannot help but notice that over the last few months the federal 
government provided $65 billion to prop up a failing automobile 
industry. Chrysler and GM have gone through bankruptcy. A lot of people 
lost their jobs. I was supportive of the effort to try and make a 
difference there. The industry had failed in many ways. They had not 
modernized and had fallen behind world competition. So taxpayers 
provided $65 billion and acquired significant equity stakes in the 
companies to prop up our domestic automobile industry.
  Here we are talking about $1.75 billion to support an important 
segment of the aerospace industry that helps to provide jobs to 
thousands of American workers. And we are about to say to our workers 
that the resulting production gap is acceptable, at a time when 
unemployment rates are expected to exceed 10 percent. But for some 
reason, some of my colleagues insist that we should not sustain part of 
the most sophisticated and advanced aerospace industrial base in the 
world for $1.75 billion. In contrast, as I mentioned we are devoting 
$65 billion to the automobile industry, which to many is a different 
matter.
  I don't understand that logic. This is the very same government that 
says our domestic auto industry is worth saving, and I joined with my 
colleagues on that issue. As chairman of the Banking Committee, I led 
the fight to help save that industry in the Senate, an industry run 
into the ground by shoddy management and no business plan whatsoever.
  While the government is picking winners and losers, I have to ask my 
colleagues: Do we truly believe that the domestic auto industry is more 
worth saving than a critical portion of America's aerospace industry? 
Because that is what we are talking about.
  A government-mandated commission on the future of the U.S. aerospace 
industry recently recommended that ``the Nation immediately reverse the 
decline in and promote the growth of a scientifically and 
technologically trained U.S. aerospace workforce,'' adding, ``the 
breakdown of America's intellectual and industrial capacity is a threat 
to national security and our capability to continue as a world 
leader.'' Here we are with unemployment rates going through the 
ceiling, and for $1.75 billion--and it is expensive; I am not saying it 
is not--but we are not in any situation to allow any more American jobs 
to be lost. These job losses

[[Page 17999]]

are entirely preventable; it is within our power to protect the jobs of 
thousands of workers across the country.
  And if the Levin-McCain amendment prevails, I am afraid that some day 
people will look back, and say: What in the world were we thinking? 
What in the world were we thinking of, with jobs at risk and talented 
people--engineers, machinists--whom we rely on every day to maintain 
our superiority in this area.
  Madam President and my colleagues, we are about to face a 3-year 
production gap between the F-22 and F-35. During that time, we will see 
many of our most skilled and experienced industry workers walk away. 
And it will be incredibly difficult, in fact I am not sure it is 
possible, to reconstitute this type of workforce.
  So either today or sometime next week we are going to, once again, 
consider legislation to strip this provision of the bill--the provision 
that would keep the most advanced fighter jet production lines humming. 
Before that vote, I hope my colleagues will ask themselves a very 
simple question: At a time of heightened security concerns and economic 
uncertainty, is it in our interest to cancel this program? According to 
the F-22's prime contractor, Lockheed Martin, the F-22 directly employs 
25,000 people across the Nation and an additional 70,000 in indirect 
jobs. With over 1,000 suppliers in 44 States, it has an economic impact 
of over $12 billion.
  The decision to kill the F-22 will have further ramifications. With 
this decision, America's production lines of advanced tactical aircraft 
will grind to a halt, and we are not expected to ramp up again for 
another 3 years. What happens to that workforce? I know what happens to 
it. If my colleagues vote for this amendment, they will be voting 
against our tactical aircraft industry. They will be saying that the 
government can no longer support these 95,000 skilled workers across 
our Nation. And to me, it doesn't add up.
  The other day I went through a chart explaining the capabilities of 
this aircraft versus those that exist in nations around the world. We 
are going to put ourselves at some risk, I would say to my colleagues. 
And that is not my conclusion alone. Listen to General Corley, who 
heads up the Air Combat Command, and listen to General Wyatt, the 
director of the Air National Guard. They have warned us about this very 
issue. This is a very critical and dangerous decision we are making.
  We have spent billions of dollars to develop this plane--billions. We 
were supposed to build 381 of them. Now we have reduced that number to 
187. In doing so, we are committing ourselves to ending the production 
line. Terminating the program will eliminate the opportunity for us to 
explore the merits of developing an export model of the F-22. We have 
allies that would benefit from purchasing a modified version of this 
technology. By offering them this capability, we would enhance our 
shared commitment to protecting global security. But this option will 
not be available if we adopt the Levin-McCain amendment.
  I urge my colleagues to consider this issue. I know Members are 
facing a great deal of pressure from all sides of this issue. But I 
think, as Members, we have an obligation, obviously, to respond to the 
calls we get, but I would argue that we have a higher responsibility to 
analyze the implications of a vote such as this.
  The implications of this vote, I think, are profound and serious for 
our country in terms of not only the economic and national security 
impact, but, for the thousands of American jobs that are sustained by 
the F-22. $1.75 billion is small in comparison to the $65 billion we 
have spent already to prop-up an industry that, frankly, should have 
shown far more leadership. The industries involved in this are not 
failing. These are solid, sound businesses. Yet they are going to be 
damaged as a result of a vote that is quite frankly, not in the 
interest of our national security or our economy.
  I would urge my colleagues, over the next several days, to think 
through this issue, to examine some of these facts before coming here 
to cast a ballot that will jeopardize both American jobs and our 
position as the global leader in aerospace industry.
  With that, I yield the floor.


                           Amendment No. 1511

  Ms. MIKULSKI. Madam President, I rise in strong support of the Smith 
amendment on hate crimes. This amendment mirrors the Local Law 
Enforcement Enhancement Act, which I have been proud to cosponsor. This 
amendment puts America's values of equality and freedom into action.
  Hate crimes are one of the most shocking types of violence against 
individuals. They are motivated by hatred and bigotry. But hate crimes 
target more than just one person--they are crimes against a community 
because of who they are--because of their race, gender, sexual 
orientation, religion or disability.
  We are a nation that cherishes our freedom. All Americans must be 
free to go to church, walk through their communities, attend school 
without the fear that they will be the target of hate violence. We are 
nation that is built on a foundation of tolerance and equality. Yet no 
American can be free from discrimination and have true equality unless 
they are free from hate crimes. That is why hate crimes are so 
destructive. They tear at our Nation's greatest strength--our 
diversity.
  This amendment does two things--it helps communities fight these 
crimes and it makes sure that those who are most often the target of 
hate motivated violence have the full protection of our Federal laws.
  The amendment strengthens current law to help local law enforcement 
investigate and prosecute hate crimes. It does this by closing a 
loophole that prevented the Federal Government from assisting local and 
State police at any stage of the investigative process. Simply put--
this bill authorizes Federal law enforcement officers to get involved 
if State or local governments want their help. That means local 
communities, which often have very limited resources for pursuing these 
types of crimes, will have the resources of the FBI and other Federal 
law enforcement agencies at their disposal to help them more 
effectively prosecution incidents of hate violence.
  This amendment also improves current law so it protects more 
Americans. It broadens the definition of hate crimes to include gender, 
sexual orientation and disability. Today, gay and lesbian Americans, 
women and those with disabilities are often targets of hate motivated 
violence, but existing Federal laws offer these communities no 
safeguards. That is the weakness in our current law. And that is what 
this legislation will fix. By passing this legislation today, the 
Senate says to all Americans that you deserve the full protection of 
the law and you deserve to be free from hate violence.
  Hate crimes are crimes against more than one person--these crimes 
affect whole communities and create fear and terror in these 
communities and among all Americans. We need look no further than the 
horrific killings of James Byrd and Matthew Shepard to know the anger 
and grief that families and communities experience because of hatred 
and bigotry. Hate crimes attack the fundamental values of our Nation--
freedom and equality. This bill is another step in the fight to make 
sure that in a nation that treasures these values these crimes do not 
occur.
  So today I rise to support and urge my colleagues to pass this much 
needed and timely legislation. It is time that we put these American 
values into action and pass this hate crimes bill. The Local Law 
Enforcement Enhancement Act says that all Americans are valued and 
protected--regardless of race, religion, gender, sexual orientation or 
disability.
  Mr. UDALL of Colorado. Madam President, I rise today in support of 
amendment No. 1511 to S. 1390.
  In the midst of my first campaign for Congress in 1998, the Nation 
was shocked by the tragic death of Matthew Shepard.
  We all know well the story of Matthew--a 21-year-old University of 
Wyoming student who was brutally murdered simply for being gay. He was 
beaten severely, tied to a fence, and left to die in freezing 
temperatures.

[[Page 18000]]

Matthew was taken to a hospital in Fort Collins, CO, where he never 
regained consciousness.
  I was elected to Congress a month after Matthew's murder. And for 
every year thereafter, I have supported Federal hate crimes legislation 
that would later be renamed for him--The Matthew Shepard Hate Crimes 
Prevention Act.
  Ten years later, in 2008, I asked my fellow Coloradans to entrust me 
with the honor of representing them in the Senate. During that 
campaign, I was deeply saddened to learn about another tragic murder 
this time in my home State of Colorado.
  In July of last year, 18-year-old Angie Zapata was beaten to death in 
the living room of her Greeley apartment. According to press accounts, 
Angie's attacker claims that he brutally went after her with a fire 
extinguisher, pummeling her until she could not fight back because of 
his hatred for transgender and gay people. This case is a sobering 
reminder that 10 years after Matthew Shepard's murder, vile prejudice 
based on sexual orientation and gender identity still plagues our 
society.
  Unlike Federal law, Colorado has a strong hate crimes statute. The 
man accused of killing Angie was the first person in the Nation to be 
tried and eventually convicted under any State's hate crime law for 
killing a person because of transgender orientation. I hope that the 
successful prosecution of Angie's killer in Colorado will be an example 
for other States and demonstrate to Members of Congress that it is time 
for the country as a whole to follow our lead.
  President Obama has promised to sign into law the expansion of hate 
crimes statute to include sexual identity, gender identity and 
disability, which is what the amendment before us today would do. I am 
a cosponsor and ardent supporter of this amendment because I believe 
now is the time in remembrance of Matthew and Angie and all other 
Americans who have been a victim of violent crimes motivated by hate to 
get this done. It is the right thing to do.
  Mr. KYL. Madam President, the Hate Crimes Prevention Act, which my 
colleague from Vermont has offered as an amendment to the Defense 
authorization bill, should not be attached to such an important piece 
of legislation. The Defense authorization bill authorizes nearly $680 
billion for national defense programs, most notably the ongoing 
operations in Iraq, Afghanistan, and the war on terror. It authorizes 
funding for such crucial programs as missile defense and foreign 
military aid for Afghanistan and Pakistan, as well as a 3.4-percent 
across-the-board pay raise for the men and women in the military. With 
such important issues at stake, we should not attach a controversial 
piece of unrelated legislation that puts passage of the entire bill at 
risk.
  Last month, members of the Judiciary Committee received a letter from 
the U.S. Commission on Civil Rights strongly urging us to vote against 
the proposed Hate Crimes Prevention Act.
  The Commission states this bill ``will do little good and a great 
deal of harm.'' Those are very strong words from the Federal body 
charged with investigating, reporting on, and making recommendations 
related to civil rights issues. The Commission's letter details a 
number of specific concerns, including that the bill would permit 
Federal authorities to prosecute defendants who have been previously 
acquitted by State juries--a result that it describes as contrary to 
the spirit of the double jeopardy clause of the Constitution. Like the 
Commission, I believe that hate crimes legislation poses significant 
constitutional problems and risks undermining important principles of 
federalism.
  No less than 45 States and the District of Columbia already have hate 
crimes laws. I am not aware of evidence that any State has been 
reluctant to aggressively prosecute hate crimes. Furthermore, Federal 
sentencing guidelines already provide for enhancements for hate crimes 
based on race, color, religion, natural origin, ethnicity, gender, 
disability, or sexual orientation. In fact, in the case of Matthew 
Shepard, for whom this bill is named, his killers are appropriately 
serving life sentences in prison for felony murder.
  The trend to try at the Federal level crimes that traditionally have 
been handled in State courts not only is taxing the judiciary's 
resources and affecting its budget needs but also threatens to change 
the nature of our Federal system. The pressure in Congress to appear 
responsive to every highly publicized societal ill or sensational crime 
needs to be balanced with an inquiry into whether States are doing an 
adequate job in these particular areas and, ultimately, whether we want 
most of our legal relationships decided at the national rather than 
local level.
  Federal courts were not created to adjudicate local crimes, no matter 
how heinous they may be. State courts handle such problems. While there 
certainly are areas in criminal law in which the Federal Government 
must act, the vast majority of local criminal cases should be decided 
in the State courts which are equipped for such matters. Matters that 
can be handled adequately by the States should be left to them; matters 
that cannot be so handled should be undertaken by the Federal 
Government. Neither Senator Leahy nor other supporters of this bill 
have demonstrated that there is an epidemic of hate-based violence that 
State and local authorities can't or won't prosecute, therefore 
justifying the need for a hate crimes bill.
  For these reasons, I strongly urge my colleagues to vote against the 
Hate Crimes Prevention Act amendment.
  Mr. LEAHY. Madam President, the Senate is considering the bipartisan 
Matthew Shepard Hate Crimes Prevention Act of 2009 as an amendment to 
the pending the pending National Defense Authorization Act. This 
important civil rights bill has been pending for more than a decade and 
has passed the Senate numerous times--in 2007, 2004, 2000, and 1999. It 
also has the support of the Attorney General, and the President has 
asked Congress to take swift action on this bill.
  I thank Senator Collins, Senator Snowe, and the 33 other bipartisan 
cosponsors for their support for my amendment, which contains the full 
text of the Matthew Shepard Hate Crimes Prevention Act introduced by 
Senator Kennedy.
  I wish my friend could be here with us today. I commend the senior 
Senator from Massachusetts for his steadfast leadership over the last 
decade in working to expand our Federal hate crimes laws.
  I thank the majority leader for offering this amendment on my behalf 
while I chaired the hearing on Judge Sonia Sotomayor to be an Associate 
Justice on the Supreme Court. I had hoped that we would reach a time 
agreement or at least an agreement to proceed to this bipartisan 
amendment. Yet some have sought to further delay passage of this 
critical measure.
  The hate crimes amendment would improve existing law by making it 
easier for Federal authorities to investigate and prosecute crimes of 
racial, ethnic, or religious violence. Victims will no longer have to 
engage in a narrow range of activities, such as serving as a juror, to 
be protected under Federal law.
  In addition, the hate crimes amendment will provide assistance and 
resources to State, local and tribal law enforcement to address hate 
crimes. It also focuses the attention and resources of the Federal 
Government on the problem of crimes committed against people because of 
their sexual orientation, gender, gender identity, or disability, which 
is a long-overdue protection.
  As a former State prosecutor, respect for local and State law 
enforcement is important to me. This amendment was carefully crafted to 
strike a proper balance between Federal and local interests by allowing 
the Federal Government to appropriately support, but not to substitute 
for, State and local law enforcement.
  I come from a State that passed a law almost a decade ago to expand 
protections for victims of violence motivated by sexual orientation and 
gender identity and to increase penalties for hate crimes to deter such 
violence.

[[Page 18001]]

  Unfortunately, not all States offer these protections--protections 
that all Americans deserve. We need a strong Federal law to serve as a 
backstop to prevent hate motivated violence in America.
  The recent tragic events at the Holocaust museum have made clear that 
these vicious crimes continue to haunt our country. This bipartisan 
legislation is carefully designed to help law enforcement most 
effectively respond to this problem.
  We stand to make real progress toward expanding Federal protections 
for victims of bias-motivated violence when we vote for cloture to end 
debate on the motion to proceed to this amendment.
  Senators from both sides of the aisle support this amendment. I call 
on all my fellow Senators to join me in support of this amendment and 
to vote to end the delay of Senate consideration of this important 
measure because expanding hate crimes protections and providing support 
to State, local, and tribal enforcement efforts are long overdue. That 
is why a vote for this amendment is necessary.
  Mr. HATCH. Madam President, I rise to speak about the Hatch amendment 
which will be called up later.
  As we have had the debate in this Chamber over hate crimes 
legislation, one obvious fact is revealed again and again. The 
proponents of the Matthew Shepard Hate Crimes Prevention Act have not 
taken the time to answer what should have been a threshold question: Is 
it necessary?
  Just a few short weeks ago, Attorney General Eric Holder was gracious 
enough to testify before the Senate Judiciary Committee on this 
legislation. During that hearing, I asked him specifically whether 
there was any evidence of crimes motivated by bias and prejudice that 
are not being adequately addressed at the State level; whether there 
was a specific trend indicating that, with regard to hate crimes, 
justice is not being served in State courts. His answer was not 
surprising to anyone who has been following this debate for these many 
years. But if your only knowledge of this issue came from the 
statements made by the Democrats in support of this legislation, you 
would probably be very surprised.
  His answer was: No. There is not any statistical evidence indicating 
that the States are not up to the task of investigating, prosecuting, 
and punishing crimes motivated by bias and prejudice. None. None 
whatsoever. The Attorney General said quite openly, in fact, that the 
States were doing a fine job addressing these crimes.
  This is not a new revelation. In the years Congress has been debating 
hate crimes legislation, many of us have been asking similar questions, 
and we have received similar answers. But in light of the Democratic 
Attorney General's own testimony regarding the States' laudable efforts 
to punish hate crimes, it is even more clear that the supporters of 
this legislation have not answered what would be a threshold question: 
Is it necessary?
  The truth is that the vast majority of States have hate crimes 
statutes on the books. The acts associated with this legislation--
murder, assault, et cetera--are punishable in every jurisdiction in the 
United States. Under our legal system, defendants will, at times, 
receive penalties that many believe are not sufficient given the nature 
of their crimes. In addition, because our criminal justice system is 
designed to protect defendants and place the heaviest burdens on the 
government, some guilty parties undoubtedly go unpunished. But I have 
seen no evidence whatsoever proving that these inevitable occurrences 
happen more often in cases involving bias-motivated violence and, to 
date, no such evidence has been provided.
  My amendment is similar to legislation I have introduced in the past. 
Instead of expanding the powers of the Federal Government, it would 
mandate a study that would provide us with the information we should 
have before we even consider taking such an approach. Specifically, my 
alternative would require a study to compare over a 12-month period the 
investigations, prosecutions, and sentencing in States that have 
differing laws with regard to hate crimes. In addition, it would 
require a report on the extent of those crimes throughout the United 
States and the success rate of State and local officials in combating 
them.
  The amendment would also provide a mechanism for the Department of 
Justice to provide technical, forensic, prosecutorial or any other 
assistance in the criminal investigation or prosecution of any crime 
``motivated by animus against the victim by reason of the membership of 
the victim in a particular class or group.'' And it would authorize the 
Attorney General to make grants to States that lack the necessary 
resources to prosecute these crimes.
  Contrary to what some of my colleagues may believe, Congress does not 
have the power to act in any manner that it chooses. There are a number 
of constitutional issues raised by this legislation, including the 
extent of Congress's power under the commerce clause and prohibitions 
that could chill free speech in certain sectors of this country. Most 
apparently, this legislation would impede on grounds that are 
traditionally left to the States. Worst of all, it would do so when, if 
the Attorney General is to be believed, the States are by and large 
doing a fine job at addressing these crimes.
  No one in this Chamber wants to see bias-motivated crimes go 
unpunished. That is not the question we are facing today. The question 
is whether, given the current state of affairs in most States and the 
limitations on Congress's power, this measure is appropriate.
  It seems to me before we even consider such a broad and sweeping 
change in the Federal criminal law we should at the very least have 
enough information before us to determine whether such law is 
necessary. My amendment would have us get that information and, in 
addition, establish a role for the Federal Government that is more 
appropriate respecting the sovereignty of the States and the limits on 
Federal power established under the Constitution.
  It should be noted that this bill that has been called up is named 
the Matthew Shepard bill. What happened to Mr. Shepard was brutal, 
heinous, awful, unforgivable. But the fact is, the perpetrators are now 
spending the rest of their lives in prison because the local judiciary 
and system tried and convicted them. There is a real question whether 
we should put into law this hate crimes bill that I believe is going to 
cause a lot more problems than it will help, especially since there is 
no basic evidence that the State and local governments are incapable or 
unable to take care of these types of crimes.
  I think there is a lot of beating of the breasts and acting like we 
are doing something when in fact all we are doing is gumming up the law 
if we pass this bill, and I think doing so unconstitutionally, in the 
end, basically is making it possible to bring hate crimes actions all 
over the country in a multiplicity of ways that will cost the Federal 
Government untold amounts of money that should not be spent.
  All of us are against hate crimes. Every one of us would do 
everything we possibly can to get rid of them. But until there is 
evidence that the State and local governments are not doing the job--
and that evidence we have asked for, for years now, and they have never 
been able to produce any. Until that is produced we should not go ahead 
and pass legislation like this.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kansas is recognized.
  Mr. BROWNBACK. Madam President, there is soon to be an announced 
agreement. In that there will be an amendment I am putting forward to 
protect free speech. I hope all my colleagues would join me in 
supporting the amendment I am putting forward on the hate crimes bill. 
I think it is very important that we protect free speech. It has been 
one of the things my colleagues who support the hate crimes legislation 
are saying: Look, we are protective of free speech. We are protective 
of religious expression.
  If that is the case, I hope they will vote for the amendment I am 
putting forward.

[[Page 18002]]

  I think it is important we be very clear on the protection of free 
speech and religious protection as protected in the first amendment in 
this bill as a way for it to be clear these things are to be protected. 
I want to read the amendment I am putting forward. It is a paragraph 
long, and I think by reading it, it will help explain some of this to 
my colleagues:

       Nothing in this section or an amendment made by this 
     section shall be construed or applied in a manner that 
     infringes any rights under the First Amendment to the U.S. 
     Constitution, or substantially burdens any exercise of 
     religion (regardless of whether compelled by, or central to, 
     a system of religious belief), speech, expression, 
     association, if such exercise of religion, speech, 
     expression, or association was not intended to--(1) plan or 
     prepare for an act of physical violence; or (2) incite an 
     imminent act of physical violence against another.

  There is some lawyerese in that, but what it says is you have free 
speech unless it is intended to plan or prepare for an act of physical 
violence or incite an imminent act of physical violence against 
another.
  In other words, if you are saying this to try to incite people to 
physical violence or an imminent act of physical violence, that is not 
protected. But everything else is free speech and may be seen by some 
as religious expression.
  What we are trying to do is narrow this, tying it into the actual act 
that takes place and not be an act that intimidates people's expression 
of their ideas or expression of their religious convictions that they 
may hold.
  I hope my colleagues will look at this and say, yes, that is what we 
mean to do, and not to sort of have a chilling effect on all free 
speech, all free expression, on all free expression within a religious 
organization or group that may have some differing views.
  Frankly, I don't think, if we have a bill that intimidates or chills 
first amendment free speech or religious expression, that it is going 
to stand constitutional challenge. That is why I am putting forward 
this amendment.
  The current language of this bill attempts to project the free 
exercise of religion solely to a first amendment constitutional 
framework. I think this is problematic because the Supreme Court has 
severely limited those first amendment rights, particularly regarding 
free religious expression as a result of a decision in an Employment 
Division, Department of Human Resources of Oregon v. Smith. It was a 
Ninth Circuit Court opinion.
  The Congress, after that opinion was issued, was quick to recognize 
the damage done to religious freedom in Smith and in response passed 
the Religious Freedom Restoration Act. This act serves as a framework 
created by Congress to protect religious free speech in other contexts. 
That is what this amendment is taking from, this bill that has already 
passed this Congress by a wide margin, the Religious Freedom 
Restoration Act.
  My amendment adopts language from that bill in contrast to the free 
exercise jurisprudence of the Supreme Court. Courts have noted that the 
congressionally created Religious Freedom Restoration Act model 
possesses clarity and ease of construction. In fact, numerous claims 
that were unsuccessful under the first exercise clause jurisprudence of 
the Supreme Court have either prevailed or were entitled to remand for 
more favorable review under the Religious Freedom Restoration Act. My 
amendment seeks to protect religious motivated speech but it protects 
speech.
  What it says is, if you are in a narrow category of where you are 
intending this speech to cause somebody bodily harm, then you are not 
protected, and you should not be protected. But, if otherwise, you are 
exercising your right of free speech or religious association, you are 
entitled to the protection under the Constitution.
  It would be my hope that my colleagues would look at this amendment 
and they would say that what we are putting forward is an amendment 
which has passed this body previously, passed this body in a strong 
bipartisan vote, is one that we want to stick with--that definition and 
not this broader one that can be interpreted as limiting first 
amendment freedom of expression or religious association.
  That is a simple amendment I have put forward. I ask my colleagues to 
look at the amendment itself. It is one paragraph long. I ask they 
support this amendment.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER (Mr. Begich). Without objection, it is so 
ordered.
  Mr. REID. Mr. President, Senator McConnell and I appreciate 
everyone's patience.
  I now ask unanimous consent that upon disposition of the Hatch 
amendment, Leahy alternative to Brownback amendment and Brownback 
amendments specified below, the Senate proceed to vote on the motion to 
invoke cloture on the Leahy amendment No. 1511; further, that when this 
agreement is entered, amendment No. 1539 be withdrawn, and that the 
following list of amendments be the only amendments on the subject of 
hate crimes remaining in order during the pendency of S. 1390: Hatch 
amendment regarding alternative; Leahy or designee alternative to 
Brownback amendment; Brownback amendment regarding first amendment 
protections, Leahy or designee alternative to Sessions death penalty; 
Sessions amendment regarding death penalty; Sessions amendment 
regarding servicemembers; Sessions amendment regarding attorney general 
regulations; that all of the above amendments be first-degree 
amendments except the Hatch, Brownback and Leahy alternative to 
Brownback amendment which are second-degree amendments to the Leahy 
amendment No. 1511; and that debate on any of the amendments listed 
above be limited to 40 minutes each, prior to a vote in relation 
thereto, except the Hatch, Leahy alternative and Brownback amendments; 
and the cloture vote debate time be limited to up to 4 minutes each, 
equally divided and controlled in the usual form, with the time equally 
divided and controlled in the usual form; that if there is a sequence 
of votes, then any subsequent votes after the first would be limited to 
10 minutes each; that upon disposition of the listed amendments, all 
postcloture time be yielded back; further, that the Hatch, Leahy 
alternative to Brownback and Brownback amendments be first debated and 
voted tonight, that upon disposition of those amendments, the Senate 
proceed to vote on the motion to invoke cloture on amendment No. 1511; 
that if cloture is invoked, then amendment No. 1511, as amended, if 
amended, be agreed to and the motion to reconsider be laid upon the 
table; further, that notwithstanding adoption of amendment No. 1511, as 
amended, if amended, the remaining amendments relating to hate crimes 
still be in order; further, that if cloture is not invoked on the Leahy 
amendment, then the motion to reconsider be considered entered and the 
part of the agreement relating to the amendments with respect to hate 
crimes be null and void; provided further that if upon reconsideration, 
and cloture is invoked, then the remaining amendments not disposed of 
prior to the cloture vote remain in order; further, that the next 
first-degree amendment in order to S. 1390 be a Republican amendment, 
with no amendment in order to the amendment during today's session, 
with the amendment being offered tonight and debate commencing on the 
amendment when the Senate resumes consideration of the bill on Monday, 
following disposition of the Leahy alternative and Sessions amendments 
listed above; that upon disposition of the Republican amendment 
specified above, Senator Levin be recognized to offer the Levin-McCain 
amendment relating to the F-22, with debate on that amendment limited 
to 2 hours, with the time equally divided and controlled between 
Senators Levin and Chambliss or their designees; that upon the use or 
yielding back of that debate time, the Senate proceed to vote on the 
amendment, with no amendment in order to the Levin-McCain amendment.

[[Page 18003]]

  The PRESIDING OFFICER. Is there objection?
  Mr. McCONNELL. Reserving the right to object, and I will not object, 
I ask my friend the majority leader, am I correct that after the four 
votes tonight, the next vote will be on Monday at roughly what time?
  Mr. REID. Probably around 3 o'clock. We are going to come in Monday 
at 1 and work through these amendments we have remaining on hate 
crimes, and then we would go to the matter that will be offered by the 
Republicans tonight. When we complete that, we will finish the work in 
2 hours on the F-22 amendment.
  So next week, everybody, we will start early on Monday, as I have 
indicated, and we will have, perhaps, some long days. This is an 
important piece of legislation.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. We appreciate everyone's cooperation. It has been very 
difficult to get this, but I think it will move to get the Defense bill 
done at an earlier time.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KERRY. Will these votes be 10-minute votes?
  Mr. REID. We have already indicated the first one will be 15. We hope 
to do some by voice. That is possible.
  Mr. KERRY. I thank the leader.
  The PRESIDING OFFICER. The Senator from Kansas.


                Amendment No. 1610 to Amendment No. 1511

  Mr. BROWNBACK. Mr. President, I call up my amendment No. 1610 and ask 
that it be brought before the body.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Kansas [Mr. Brownback] proposes an 
     amendment numbered 1610 to amendment No. 1511.

  Mr. BROWNBACK. I ask unanimous consent that reading of the amendment 
be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

   (Purpose: To clarify that the amendment shall not be construed or 
             applied to infringe on First Amendment rights)

       Strike page 16, line 24 through page 17, line 7 and insert 
     the following:

     SEC. ___. CONSTRUCTION AND APPLICATION.

       Nothing in this division, or an amendment made by this 
     division, shall be construed or applied in a manner that 
     infringes on any rights under the first amendment to the 
     Constitution of the United States, or substantially burdens 
     any exercise of religion (regardless of whether compelled by, 
     or central to, a system of religious belief), speech, 
     expression, association, if such exercise of religion, 
     speech, expression, or association was not intended to--
       (1) plan or prepare for an act of physical violence; or
       (2) incite an imminent act of physical violence against 
     another.

  Mr. BROWNBACK. Mr. President, this is part of the agreement we had 
for votes on side-by-sides.
  What this amendment does is put forward and into this bill language 
that this body has already passed by a vote of 97 to 3. It is language 
that was in the Religious Freedom Restoration Act. It is to protect 
individuals' religious freedom, their freedom of expression. It has 
passed this body overwhelmingly. It narrows the definition and it says 
that if you intend to incite somebody to do physical harm to another 
individual, that is not protected speech. If you plan to prepare for an 
act of physical violence or incite an imminent act of physical violence 
against another, it is not protected, that is not protected speech; 
otherwise, you have free speech and the right to free speech expression 
and religious freedom expression.
  It is important that we have a very clear definition--a narrow 
definition but a very clear definition--of what is protected and what 
is not protected speech in this very critical area of first amendment 
rights and limitations we are putting in here.
  It is a very short amendment, a very important amendment on the hate 
crimes legislation. I ask my colleagues for their support again, as 
many of my colleagues have already voted for it in an overwhelming 
number.
  I thank my colleagues for their review of this amendment. I hope they 
can vote for it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, once this amendment of the Senator from 
Kansas is disposed of, I will then offer an amendment. My amendment 
would preserve the first amendment protections in the hate crimes bill 
and add language to clarify that nothing in this act diminishes the 
protections of the first amendment. Of course, we could not pass a 
bill, as I am sure the Senator from Kansas knows, Congress could not 
pass legislation that would diminish the protections of the first 
amendment, the first amendment being in the Constitution, the first 
amendment protecting our right to practice whatever religion we want or 
none if we want and protecting our right of free speech.
  At the appropriate time, I will have an amendment which would 
preserve first amendment protections in the hate crimes bill and add 
language to clarify that nothing in this act diminishes the protections 
of the first amendment. I would assume the Senator from Kansas would 
have no objection to that.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. I certainly don't have an objection to an amendment 
being brought up. I would note that this is a very important area we 
are treading on, limitation of people's free speech and religious 
association they have. What I am offering is language that has passed 
this body by a large margin before, 97 to 3. I hope to see the language 
the Senator from Vermont is putting forward. If it is the language that 
is currently in the bill, this is quite untested language in a very 
limited area. I read his language to be quite expansive. I think it 
would be questionable, going into constitutional territory. But the 
bigger point on this being that I believe my colleagues who want to 
pass the hate speech legislation have been saying all along this does 
not limit somebody's right of free speech. It doesn't limit anybody's 
right of religious expression, if they have different views. It is just 
about a violent act and association that would reflect hate. So what I 
have done in two sentences is say let's be specific about that rather 
than very general about that in its interpretation or leaving that to 
the court.
  If I have the language correct that he is putting forward in 
reinstating this, I really hope my colleagues would look at both of 
these and say they do want a very narrow, specific definition put 
forward.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I have no objection to just accepting by 
voice vote his amendment if the language was previously voted on in the 
last Congress and has been pending for some time.
  Mine is very short. I call on any Senator to tell me if there is 
anything they disagree with. It says:

       Nothing in this division, or amendment made by this 
     division, shall be construed to diminish any rights under the 
     first amendment to the Constitution of the United States.
       Nothing in this division shall be construed to prohibit any 
     constitutionally protected speech, expressive conduct or 
     activities (regardless of whether compelled by, or central 
     to, a system of religious belief), including the exercise of 
     religion protected by the first amendment to the Constitution 
     of the United States and peaceful picketing or demonstration. 
     The Constitution does not protect speech, conduct or 
     activities consisting of planning for, conspiring to commit, 
     or committing an act of violence.

  Does any Member of this body, Republican or Democratic, disagree with 
that language? Basically, it says the Constitution is the Constitution. 
We follow the Constitution. Does anyone disagree with that language?
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. LEAHY. Yes.
  Mr. DURBIN. Does the Senator from Vermont recall that when Attorney 
General Holder appeared before the Judiciary Committee, he was asked 
pointblank if, in the course of a religious ceremony or religious 
observance, a person gave a sermon, made a speech that was negative 
toward people

[[Page 18004]]

of different sexual orientation and someone in the congregation, after 
hearing the sermon, committed an act of violence, the Attorney General 
was asked, would the person who gave the sermon, gave the speech, be 
held responsible under the hate crimes act and the Attorney General 
responded no because the hate crimes act requires a physical act of 
violence in order for there to be a prosecution? Does the Senator from 
Vermont recall that?
  Mr. LEAHY. I recall that very well. I also note that every single 
Republican, every single Democratic member on the committee agreed with 
Attorney General Holder on that.
  My amendment simply says that the Constitution of the United States 
controls. That is the ultimate law of the land. I can't imagine anybody 
in this body disagreeing with that, especially as every single Member 
of this body has taken an oath to uphold the Constitution of the United 
States.
  Mr. LEVIN. Will the Senator yield for a question?
  Mr. LEAHY. Of course.
  Mr. LEVIN. The amendment of the Senator from Vermont makes it very 
clear that included in first amendment rights are the rights to 
peaceful picketing or demonstration. That is not included in the 
Brownback amendment. Would the Senator from Vermont agree, however, 
that we don't need to choose between the two amendments? They both 
state important truths and make very important contributions. Is it not 
the Senator's understanding that both amendments can be adopted, that 
they are not at all inconsistent with each other?
  Mr. LEAHY. I agree with that. And speaking as the chairman of the 
Senate Judiciary Committee, I am perfectly willing to accept both of 
them. I would be surprised if my friend from Kansas feels otherwise.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Thank you very much, Mr. President.
  I thank my colleagues, and I thank the chairman of the Armed Services 
Committee for his comment on this issue.
  I guess the conferees will have to deal with a difficult issue 
outside the jurisdiction of the committee, particularly on something 
like hate crimes, which I really have great question as to why on Earth 
we would do this on a DOD authorization bill.
  But I would like to point out that my colleague, the chairman of the 
Judiciary Committee, has been in that committee for a long period of 
time, and he knows these issues very well. What his amendment puts 
forward is something that will be interpreted then by the courts. It 
will have to be interpreted by the courts, and it has broader language.
  What I am putting forward is very specific language that puts a clear 
intent of the Congress not to limit certain types of speech but to 
limit speech that is associated with physical harm or the incitement of 
physical harm. That seems to me to be clearly appropriate for us to do, 
probably a better thing to do on the hate crimes legislation--for us to 
be very specific and narrow in this area where we are treading into 
first amendment religious expression areas.
  I would like to read my language, if I could, to my colleague. It 
says--and this is the operative part of this--``if such exercise of 
religion, speech, expression, or association was not intended to''--so 
it protects every area except what is ``not intended to plan or prepare 
for an act of physical violence; or incite an imminent act of physical 
violence against another.''
  So we are trying to get into the category and the area, and a lot of 
people are very concerned about this, about being able to have their 
rights for religious expression and freedom. I think this is a much 
tighter focus. I believe my colleague would agree, as a lawyer----
  The PRESIDING OFFICER. The time on the amendment has expired.
  Mr. BROWNBACK. Mr. President, I ask for the yeas and nays on the 
Brownback amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, parliamentary inquiry: I understand the 
first vote under the unanimous consent agreement will be on the Leahy 
amendment; is that correct?
  The PRESIDING OFFICER. Hatch.
  Mr. LEVIN. In terms of these two amendments?
  The PRESIDING OFFICER. Hatch. And then after Hatch, Leahy, then 
Brownback.
  Mr. LEVIN. All right. So that after the disposition of the Hatch 
amendment, the first amendment to be disposed of between these two 
would be the Leahy amendment?
  The PRESIDING OFFICER. That is correct.
  Mr. LEVIN. I would hope that to expedite things the Senator from 
Vermont would consider a voice vote because I think both of these 
amendments will pass, and should pass, and we can save the body's time.
  But I would like to suggest that even though the Senator from Kansas 
wants a rollcall, both amendments should be adopted, and if the Senator 
from Vermont can accept a voice vote when it comes his turn, I think 
that will indicate the clear will of the body, and then we would 
proceed to another clear will of the body on the amendment of the 
Senator from Kansas.
  Mr. LEAHY. Mr. President, to answer the Senator from Michigan, I am 
perfectly willing to voice vote both of them. I intend to vote for both 
of them. We are saying that you have a freedom of religion, and the 
courts cannot undermine the first amendment.
  This is hornbook law. This is your first week of law school. No court 
is going to disagree with that. I am perfectly willing to accept both 
by a voice vote.


                Amendment No. 1613 to Amendment No. 1511

  So, Mr. President, I offer my amendment and send it to the desk.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The legislative clerk read as follows:

       The Senator from Vermont [Mr. Leahy] proposes an amendment 
     numbered 1613 to amendment No. 1511.

  The amendment is as follows:

       At the end of the amendment, insert the following:
       (b) First amendment.--Nothing in this division, or an 
     amendment made by this division, shall be construed to 
     diminish any rights under the first amendment to the 
     Constitution of the United States.
       (c) Constitutional protections.--Nothing in this division 
     shall be construed to prohibit any constitutionally protected 
     speech, expressive conduct or activities (regardless of 
     whether compelled by, or central to, a system of religious 
     belief), including the exercise of religion protected by the 
     first amendment to the Constitution of the United States and 
     peaceful picketing or demonstration. The Constitution does 
     not protect speech, conduct or activities consisting of 
     planning for, conspiring to commit, or committing an act of 
     violence.

  The PRESIDING OFFICER. The Senator from Utah.


                Amendment No. 1611 to Amendment No. 1511

  Mr. HATCH. Mr. President, I call up amendment No. 1611 and ask for 
its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Utah [Mr. Hatch] proposes an amendment 
     numbered 1611 to amendment No. 1511.

  Mr. HATCH. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

      (Purpose: To prevent duplication in the Federal government)

       At the appropriate place, insert the following:

     SEC. __. COMPREHENSIVE STUDY AND SUPPORT FOR CRIMINAL 
                   INVESTIGATIONS AND PROSECUTIONS BY STATE AND 
                   LOCAL LAW ENFORCEMENT OFFICIALS.

       (a) In General.--Notwithstanding any other provision of 
     this Act, division E of this Act (relating to hate crimes), 
     and the amendments made by that division, shall have no force 
     or effect.
       (b) Studies.--
       (1) Collection of data.--
       (A) Definition of relevant offense.--In this paragraph, the 
     term ``relevant offense''

[[Page 18005]]

     means a crime described in subsection (b)(1) of the first 
     section of Public Law 101-275 (28 U.S.C. 534 note) and a 
     crime that manifests evidence of prejudice based on gender or 
     age.
       (B) Collection from cross section of states.--Not later 
     than 120 days after the date of enactment of this Act, the 
     Comptroller General of the United States, in consultation 
     with the National Governors' Association, shall, if possible, 
     select 10 jurisdictions with laws classifying certain types 
     of offenses as relevant offenses and 10 jurisdictions without 
     such laws from which to collect the data described in 
     subparagraph (C) over a 12-month period.
       (C) Data to be collected.--The data described in this 
     paragraph are--
       (i) the number of relevant offenses that are reported and 
     investigated in the jurisdiction;
       (ii) the percentage of relevant offenses that are 
     prosecuted and the percentage that result in conviction;
       (iii) the duration of the sentences imposed for crimes 
     classified as relevant offenses in the jurisdiction, compared 
     with the length of sentences imposed for similar crimes 
     committed in jurisdictions with no laws relating to relevant 
     offenses; and
       (iv) references to and descriptions of the laws under which 
     the offenders were punished.
       (D) Costs.--Participating jurisdictions shall be reimbursed 
     for the reasonable and necessary costs of compiling data 
     collected under this paragraph.
       (2) Study of relevant offense activity.--
       (A) In general.--Not later than 18 months after the date of 
     enactment of this Act, the Comptroller General of the United 
     States shall complete a study and submit to Congress a report 
     that analyzes the data collected under paragraph (1) and 
     under section 534 of title 28, United States Code, to 
     determine the extent of relevant offense activity throughout 
     the United States and the success of State and local 
     officials in combating that activity.
       (B) Identification of trends.--In the study conducted under 
     subparagraph (A), the Comptroller General of the United 
     States shall identify any trends in the commission of 
     relevant offenses specifically by--
       (i) geographic region;
       (ii) type of crime committed; and
       (iii) the number and percentage of relevant offenses that 
     are prosecuted and the number for which convictions are 
     obtained.
       (c) Assistance Other Than Financial Assistance.--At the 
     request of a law enforcement official of a State or a 
     political subdivision of a State, the Attorney General, 
     acting through the Director of the Federal Bureau of 
     Investigation and in cases where the Attorney General 
     determines special circumstances exist, may provide 
     technical, forensic, prosecutorial, or any other assistance 
     in the criminal investigation or prosecution of any crime 
     that--
       (1) constitutes a crime of violence (as defined in section 
     16 of title 18, United States Code);
       (2) constitutes a felony under the laws of the State; and
       (3) is motivated by animus against the victim by reason of 
     the membership of the victim in a particular class or group.
       (d) Grants.--
       (1) In general.--The Attorney General may, in cases where 
     the Attorney General determines special circumstances exist, 
     make grants to States and local subdivisions of States to 
     assist those entities in the investigation and prosecution of 
     crimes motivated by animus against the victim by reason of 
     the membership of the victim in a particular class or group.
       (2) Eligibility.--A State or political subdivision of a 
     State applying for assistance under this subsection shall--
       (A) describe the purposes for which the grant is needed; 
     and
       (B) certify that the State or political subdivision lacks 
     the resources necessary to investigate or prosecute a crime 
     motivated by animus against the victim by reason of the 
     membership of the victim in a particular class or group.
       (3) Deadline.--An application for a grant under this 
     subsection shall be approved or disapproved by the Attorney 
     General not later than 10 days after the application is 
     submitted.
       (4) Grant amount.--A grant under this subsection shall not 
     exceed $100,000 for any single case.
       (5) Report and audit.--Not later than December 31, 2010, 
     the Attorney General, in consultation with the National 
     Governors' Association, shall--
       (A) submit to Congress a report describing the applications 
     made for grants under this subsection, the award of such 
     grants, and the effectiveness of the grant funds awarded; and
       (B) conduct an audit of the grants awarded under this 
     subsection to ensure that such grants are used for the 
     purposes provided in this subsection.
       (e) Authorization of Appropriations.--There is authorized 
     to be appropriated $5,000,000 for each of the fiscal years 
     2010 and 2011 to carry out this section.

  Mr. HATCH. Mr. President, the purpose behind this amendment is 
simple. The proponents of the Matthew Shepard Hate Crimes Prevention 
Act have yet to answer what should have been the threshold question: Is 
it really necessary?
  My amendment would mandate a study to determine whether the States 
are adequately addressing bias-motivated violence. To date, we have 
seen no evidence that they are not. In fact, we have asked the Attorney 
General, for years now, to come up with any evidence they can. In the 
hearing before the Judiciary Committee recently, he specifically stated 
the States are doing a good job at addressing hate crimes.
  It would also authorize the Justice Department to provide limited aid 
and assistance in State prosecutions of bias-motivated crimes.
  In almost every case raised by the proponents of a horrific act of 
violence motivated by prejudice, the perpetrators have been dealt with 
adequately at the State level.
  In the Matthew Shepard case, the two perpetrators are spending life 
in prison. In other cases, some have had the death penalty, and others 
have spent life in prison.
  Before we start overriding State efforts, I believe we should at 
least make an effort to determine whether there is a legitimate Federal 
role in the prosecution of hate crimes. That is what my amendment would 
do, and I hope our colleagues will consider voting for it.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I know the hour is late. The matter is very 
simple. The Hatch amendment kills the hate crimes legislation. If you 
want to kill the hate crimes legislation, vote for the Hatch amendment. 
If you do not want to kill the hate crimes legislation, if you want a 
chance to vote on something the Senate has voted for time and time 
again, then vote against the Hatch amendment.
  The Attorney General testified at the request of the Republicans. He 
testified before the Senate Judiciary Committee and endorsed the 
legislation before us. The Hatch amendment--perhaps well-meaning; I 
assume it is--would, in effect, eviscerate the hate crimes legislation. 
It would kill the hate crimes legislation.
  The question is very simple: Vote for Hatch; you kill the hate crimes 
legislation. Vote against it, we have a chance to vote for the hate 
crimes legislation--something the Senate has voted for several times 
before and something the Attorney General supports based on a hearing 
we had at the request of the Republicans within the past month.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, do I have any time remaining?
  The PRESIDING OFFICER. The Senator from Utah has 40 seconds 
remaining.
  Mr. HATCH. Mr. President, my amendment does not kill the hate crimes 
opportunity. It says, let's do a study. Let's know what we are talking 
about. Let's see if there is a real need for this bill. With all of the 
constitutional ramifications this bill has, it says: Let's be cautious. 
Let's just not go pell-mell into the maelstrom without knowing what we 
are talking about.
  Mr. LEVIN. Mr. President, is there any time remaining for the 
opponents?
  The PRESIDING OFFICER. There is 45 seconds.
  Mr. LEVIN. Mr. President, the Hatch amendment is explicit. It is 
clear. On lines 6 and 7 on page 1, and lines 1 and 2 on page 2, it 
says: ``division E of this Act (relating to hate crimes), and the 
amendments made by that division, shall have no force or effect.'' It 
is explicit. It says: No hate crimes legislation; instead, a study.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah has 15 seconds.
  Mr. HATCH. Mr. President, all it says is, we would go a different 
route. We would do the study first, so we do not go off half cocked and 
do something that may be unconstitutional and unsound.
  Mr. President, I ask for the yeas and nays on the amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.

[[Page 18006]]

  All time has expired on the Hatch amendment.
  The question is on agreeing to the amendment.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd) 
and the Senator from Massachusetts (Mr. Kennedy) are necessarily 
absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Tennessee (Mr. Alexander), the Senator from Tennessee (Mr. 
Corker), the Senator from Missouri (Mr. Bond), the Senator from New 
Hampshire (Mr. Gregg), the Senator from Kentucky (Mr. Bunning), the 
Senator from Florida (Mr. Martinez), and the Senator from South 
Carolina (Mr. Graham).
  Further, if present and voting, the Senator from Tennessee (Mr. 
Alexander) would have voted ``yea,'' the Senator from Tennessee (Mr. 
Corker) would have voted ``yea,'' and the Senator from Kentucky (Mr. 
Bunning) would have voted ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 29, nays 62, as follows:

                      [Rollcall Vote No. 231 Leg.]

                                YEAS--29

     Barrasso
     Bennett
     Brownback
     Burr
     Chambliss
     Coburn
     Cochran
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Grassley
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     McCain
     McConnell
     Murkowski
     Risch
     Roberts
     Sessions
     Shelby
     Thune
     Vitter
     Wicker

                                NAYS--62

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--9

     Alexander
     Bond
     Bunning
     Byrd
     Corker
     Graham
     Gregg
     Kennedy
     Martinez
  The amendment (No. 1611) was rejected.
  Mr. LEAHY. Mr. President, I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 1613

  The PRESIDING OFFICER. The pending question is the amendment of the 
Senator from Vermont.
  The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, this amendment is very simple. Anybody can 
read it in about a minute. It says that nothing shall add to or detract 
from the first amendment to the Constitution. No court in the country 
would rule otherwise. It simply says that regarding the right of free 
speech in this country, nothing can be taken from it and nothing added 
to it.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The amendment (No. 1613) was agreed to.
  Mr. LEAHY. Mr. President, I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.


                           Amendment No. 1610

  The PRESIDING OFFICER. The pending question is the amendment of the 
Senator from Kansas.
  The Senator from Kansas is recognized.
  Mr. BROWNBACK. The language we put in the Religious Freedom 
Restoration Act passed this body 97 to 3. This language is much more 
targeted, so it doesn't leave it all to the interpretation of the 
court. It expresses what this body has previously expressed. I think it 
is important that we put this forward. It says that if you are speaking 
and intending to incite physical violence or imminent threat, that is 
not protected speech. But otherwise you have protected speech. It puts 
a much finer definition on it that is important for this legislation.
  I urge my colleagues to vote for this amendment.
  The PRESIDING OFFICER. The yeas and nays have been ordered on the 
amendment.
  The question is on agreeing to the amendment.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd 
and the Senator from Massachusetts (Mr. Kennedy) are necessarily 
absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Kentucky (Mr. Bunning), the Senator from Tennessee (Mr. 
Alexander), the Senator from Tennessee (Mr. Corker), the Senator from 
New Hampshire (Mr. Gregg), the Senator from Florida (Mr. Martinez), the 
Senator from South Carolina (Mr. Graham), and the Senator from Missouri 
(Mr. Bond).
  Further, if present and voting, the Senator from Kentucky (Mr. 
Bunning) would have voted ``yea,'' the Senator from Tennessee (Mr. 
Alexander) would have voted ``yea,'' and the Senator from Tennessee 
(Mr. Corker) would have voted ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 78, nays 13, as follows:

                      [Rollcall Vote No. 232 Leg.]

                                YEAS--78

     Barrasso
     Baucus
     Bayh
     Begich
     Bennet
     Bennett
     Bingaman
     Boxer
     Brownback
     Burr
     Cantwell
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Collins
     Conrad
     Cornyn
     Crapo
     DeMint
     Dodd
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Franken
     Grassley
     Hagan
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Levin
     Lieberman
     Lincoln
     Lugar
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Risch
     Roberts
     Rockefeller
     Sanders
     Sessions
     Shaheen
     Shelby
     Snowe
     Specter
     Stabenow
     Tester
     Thune
     Udall (CO)
     Udall (NM)
     Vitter
     Voinovich
     Warner
     Webb
     Wicker
     Wyden

                                NAYS--13

     Akaka
     Brown
     Burris
     Cardin
     Gillibrand
     Harkin
     Lautenberg
     Leahy
     Mikulski
     Reed
     Reid
     Schumer
     Whitehouse

                             NOT VOTING--9

     Alexander
     Bond
     Bunning
     Byrd
     Corker
     Graham
     Gregg
     Kennedy
     Martinez
  The amendment (No. 1610) was agreed to.
  Mr. BROWNBACK. I move to reconsider the vote, and I move to lay that 
motion on the table.
  The motion to lay on the table was agreed to.


                             Cloture Motion

  The PRESIDING OFFICER. By unanimous consent, pursuant to rule XXII, 
the Chair lays before the Senate the pending cloture motion, which the 
clerk will report.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the Leahy amendment 
     No. 1511 to S. 1390, the National Defense Authorization Act 
     for Fiscal Year 2010.
         Evan Bayh, Roland W. Burris, Benjamin L. Cardin, Patrick 
           J. Leahy, Sheldon Whitehouse, Jeff Bingaman, Bernard 
           Sanders, John F. Kerry, Carl Levin, Frank R. 
           Lautenberg, Dianne Feinstein, Tom Harkin, Robert 
           Menendez, Richard J. Durbin, Christopher J. Dodd, 
           Charles E. Schumer, Harry Reid.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call is waived.
  The question is, Is it the sense of the Senate that debate on 
amendment No. 1511 offered by the Senator from Vermont, Mr. Leahy, to 
S. 1390, the National Defense Authorization Act for

[[Page 18007]]

fiscal year 2010, shall be brought to a close?
  The yeas and nays are mandatory under the rule. The clerk will call 
the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd) 
and the Senator from Massachusetts (Mr. Kennedy) are necessarily 
absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Tennessee (Mr. Alexander), the Senator from Missouri (Mr. Bond), 
the Senator from Kentucky (Mr. Bunning), the Senator from Tennessee 
(Mr. Corker), the Senator from South Carolina (Mr. Graham), the Senator 
from New Hampshire (Mr. Gregg), and the Senator from Florida (Mr. 
Martinez).
  Further, if present and voting, the Senator from Tennessee (Mr. 
Alexander) would have voted ``nay,'' the Senator from Kentucky (Mr. 
Bunning) would have voted ``nay,'' the Senator from South Carolina (Mr. 
Graham) would have voted ``nay,'' and the Senator from Tennessee (Mr. 
Corker) would have voted ``nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 63, nays 28, as follows:

                      [Rollcall Vote No. 233 Leg.]

                                YEAS--63

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--28

     Barrasso
     Bennett
     Brownback
     Burr
     Chambliss
     Coburn
     Cochran
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Grassley
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     McCain
     McConnell
     Risch
     Roberts
     Sessions
     Shelby
     Thune
     Vitter
     Wicker

                             NOT VOTING--9

     Alexander
     Bond
     Bunning
     Byrd
     Corker
     Graham
     Gregg
     Kennedy
     Martinez
  The PRESIDING OFFICER. On this vote, the yeas are 63, the nays are 
28. Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to.
  Under the previous order, the Leahy amendment, as amended, is agreed 
to.
  The motion to reconsider is considered made and laid upon the table.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, I thank my colleagues for accepting the 
amendment. I also thank the distinguished Senator from Michigan, the 
chairman of the committee, and the distinguished majority leader for 
their work, as well as my staff, Bruce Cohen, Kristine Lucius, Noah 
Bookbinder, and others.
  We have made it very clear--the Senate has made it very clear--how we 
hold in abhorrence hate crimes. I thank my colleagues for standing up 
and so strongly voicing, in a bipartisan way, their opposition to hate 
crimes.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. THUNE. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 1618

  Mr. THUNE. Mr. President, I have an amendment that I send to the desk 
and ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from South Dakota [Mr. Thune] for himself, Mr. 
     Vitter, Mr. Enzi, Mr. Barrasso and Mr. Coburn, proposes an 
     amendment numbered 1618.

  Mr. THUNE. I ask unanimous consent the reading of the amendment be 
dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To amend chapter 44 of title 18, United States Code, to allow 
citizens who have concealed carry permits from the State in which they 
    reside to carry concealed firearms in another State that grants 
 concealed carry permits, if the individual complies with the laws of 
                               the State)

       At the end of subtitle H of title X, add the following:

     SEC. 1083. RECIPROCITY FOR THE CARRYING OF CERTAIN CONCEALED 
                   FIREARMS.

       (a) Findings.--Congress finds the following:
       (1) The second amendment to the Constitution of the United 
     States protects the right of an individual to keep and bear 
     arms, including for purposes of individual self-defense.
       (2) The right to bear arms includes the right to carry arms 
     for self-defense and the defense of others.
       (3) Congress has previously enacted legislation for 
     national authorization of the carrying of concealed firearms 
     by qualified active and retired law enforcement officers.
       (4) Forty-eight States provide by statute for the issuance 
     of permits to carry concealed firearms to individuals, or 
     allow the carrying of concealed firearms for lawful purposes 
     without need for a permit.
       (5) The overwhelming majority of individuals who exercise 
     the right to carry firearms in their own States and other 
     States have proven to be law-abiding, and such carrying has 
     been demonstrated to provide crime prevention or crime 
     resistance benefits for the licensees and for others.
       (6) Congress finds that the prevention of lawful carrying 
     by individuals who are traveling outside their home State 
     interferes with the constitutional right of interstate 
     travel, and harms interstate commerce.
       (7) Among the purposes of this Act is the protection of the 
     rights, privileges, and immunities guaranteed to a citizen of 
     the United States by the fourteenth amendment to the 
     Constitution of the United States.
       (8) Congress therefore should provide for the interstate 
     carrying of firearms by such individuals in all States that 
     do not prohibit the carrying of concealed firearms by their 
     own residents.
       (b) In General.--Chapter 44 of title 18, United States 
     Code, is amended by inserting after section 926C the 
     following:

     ``Sec. 926D. Reciprocity for the carrying of certain 
       concealed firearms

       ``(a) Notwithstanding any provision of the law of any State 
     or political subdivision thereof--
       ``(1) a person who is not prohibited by Federal law from 
     possessing, transporting, shipping, or receiving a firearm, 
     and who is carrying a government-issued photographic 
     identification document and a valid license or permit which 
     is issued pursuant to the law of a State and which permits 
     the person to carry a concealed firearm, may carry a 
     concealed firearm in any State other than the State of 
     residence of the person that--
       ``(A) has a statue that allows residents of the State to 
     obtain licenses or permits to carry concealed firearms; or
       ``(B) does not prohibit the carrying of concealed firearms 
     by residents of the State for lawful purposes;
       ``(2) a person who is not prohibited by Federal law from 
     possessing, transporting, shipping, or receiving a firearm, 
     and who is carrying a government-issued photographic 
     identification document and is entitled to carry a concealed 
     firearm in the State in which the person resides otherwise 
     than as described in paragraph (1), may carry a concealed 
     firearm in any State other than the State of residence of the 
     person that--
       ``(A) has a statute that allows residents of the State to 
     obtain licenses or permits to carry concealed firearms; or
       ``(B) does not prohibit the carrying of concealed firearms 
     by residents of the State for lawful purposes.
       ``(b) A person carrying a concealed firearm under this 
     section shall--
       ``(1) in a State that does not prohibit the carrying of a 
     concealed firearms by residents of the State for lawful 
     purposes, be entitled to carry such firearm subject to the 
     same laws and conditions that govern the specific places and 
     manner in which a firearm may be carried by a resident of the 
     State; or
       ``(2) in a State that allows residents of the State to 
     obtain licenses or permits to carry concealed firearms, be 
     entitled to carry such a firearm subject to the same laws and 
     conditions that govern specific places and manner in which a 
     firearm may be carried by a person issued a permit by the 
     State in which the firearm is carried.
       ``(c) In a State that allows the issuing authority for 
     licenses or permits to carry concealed firearms to impose 
     restrictions on the carrying of firearms by individual 
     holders of such licenses or permits, a firearm shall be 
     carried according to the same terms authorized by an 
     unrestricted license of or permit issued to a resident of the 
     State.

[[Page 18008]]

       ``(d) Nothing in this section shall be construed to--
       ``(1) effect the permitting process for an individual in 
     the State of residence of the individual; or
       ``(2) preempt any provision of State law with respect to 
     the issuance of licenses or permits to carry concealed 
     firearms.''.
       (c) Clerical Amendment.--The table of sections for chapter 
     44 of title 18 is amended by inserting after the item 
     relating to section 926C the following:

``926D. Reciprocity for the carrying of certain concealed firearms.''.
       (d) Severability.--Notwithstanding any other provision of 
     this Act, if any provision of this section, or any amendment 
     made by this section, or the application of such provision or 
     amendment to any person or circumstance is held to be 
     unconstitutional, this section and amendments made by this 
     section and the application of such provision or amendment to 
     other persons or circumstances shall not be affected thereby.
       (e) Effective Date.--The amendments made by this section 
     shall take effect 90 days after the date of enactment of this 
     Act.

  Mr. THUNE. Mr. President, the amendment that I bring to the Senate 
this evening is very simple. It ties into the debate that was just held 
about hate crimes legislation. One of the ways you can obviously 
prevent crimes from happening is to make sure that people are able to 
defend themselves against violent crimes. My amendment would do just 
that.
  My amendment is simple. It allows individuals the right to carry a 
lawfully concealed firearm across State lines, while at the same time 
respecting the laws of the host State.
  This amendment is similar to my bipartisan stand-alone bill S. 845, 
which currently has 22 cosponsors.
  The second amendment provides, and the Supreme Court held in Heller 
last summer, that law-abiding Americans have a fundamental right to 
possess firearms in order to defend themselves and their families.
  Studies have shown that there is more defensive gun use by victims 
than there are crimes committed with firearms.
  As such, I believe that a State's border should not be a limit on 
this fundamental right and that law-abiding individuals should be 
guaranteed their second amendment rights without complication as they 
travel throughout the 48 States that currently permit some form of 
conceal and carry.
  While some States with concealed carry laws grant reciprocity to 
permit-holders from other select States, my amendment would eliminate 
the confusing patchwork of laws that currently exists.
  This amendment would allow an individual to carry a concealed firearm 
across State lines if they either have a valid permit or if, under 
their State of residence, they are legally entitled to do so.
  After entering another State, an individual must respect the laws of 
the host State as they apply to conceal and carry permit holders, 
including the specific types of locations in which firearms may not be 
carried.
  Reliable, empirical research shows that States with concealed carry 
laws enjoy significantly lower violent crimes rates than those States 
that do not.
  For example, for every year a State has a concealed carry law, the 
murder rate declines by 3 percent, rape by 2 percent, and robberies by 
over 2 percent.
  Additionally, research shows that ``minorities and women tend to be 
the ones with the most to gain from being allowed to protect 
themselves.''
  The benefits of conceal and carry extend to more than just the 
individuals that actually carry the firearms.
  Since criminals are unable to tell who is and who is not carrying a 
firearm just by looking at a potential victim, they are less likely to 
commit crimes when they fear that they may come in direct contact with 
an individual who is armed.
  This deterrent is so strong that a Department of Justice study found 
that 40 percent of felons had not committed crimes because they feared 
the prospective victim was armed.
  Additionally, research shows that when unrestrictive conceal and 
carry laws are passed, it not only benefits those who are armed, but 
also others like children.
  My amendment, in comparison to others being debated in the Senate, 
would actually empower individuals to protect themselves before they 
become victims of a crime, instead of just punishing the perpetrators 
afterwards.
  A great example of this occurred earlier this month. Stephen 
Fleischman is a 62-year-old jewelry salesman from Mobile, AL, who often 
travels for business.
  On his recent business trip to Memphis a group of four men, two of 
whom were armed, confronted him in a parking lot and tried to take his 
merchandise.
  Instead of becoming a victim, Mr. Fleischman, who was legally 
concealing his firearm, was able to pull his weapon and protect himself 
and his merchandise from the four attackers.
  Who knows what would have happened to Mr. Fleischman or his jewelry 
if he was traveling in South Carolina or any of the other 27 States 
with which Alabama does not have reciprocity agreements.
  My amendment would alleviate this problem, and I hope when we return 
next week and we have an opportunity to debate this amendment and to 
vote upon it, my colleagues will support it because I believe it is an 
important tool for safety, for self-defense, and it is consistent with 
our tradition in this country of respect of second amendment rights, 
allowing American citizens the opportunity and the right to defend and 
protect themselves.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KAUFMAN. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________